# Ram Avadh & Anr v. State Of U.P. & Ors

- **Citation:** (2016) 7 ILRA 546
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-29
- **Bench:** Satyendra Singh Chauhan, Anil Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-avadh-anr-v-state-of-u-p-ors-44128
- **Pages:** 8

## Headnote

Service Law - U.P. State Archives Service Rules, 1996 - Dying in Harness Rules, 1974 - Appointment -
Relaxation - Assistant Director (Conservation) - Officiating charge of Deputy Director as well as Director -
Promotion order dated 05.10.2012 - Appointment dated 28.09.1991 - Writ Petition No.5968 (SS) of 1991 -
Judgment dated 08.02.1994 - Appointment of respondent no.4 has attained finality - Seniority - Inordinate
delay - At such a belated stage - Principles of constructive res-judicata will apply - Controversy has been set
at rest in the earlier judgment - Cannot be reopened - Failed to approach the Court promptly as
contemplated under law - Neither the seniority, which has been settled, can be unsettled at such a belated
stage - Both the writ petitions are devoid of merit and are accordingly dismissed.

Since common question of law and facts are involved in these writ petitions, therefore, the same are being
decided by a common order. Writ Petition No.1555 (SB) of 2012 was filed challenging the promotion order
dated 05.10.2012 passed in favour of respondent no.4. Facts, in short, are that the petitioner no.1 was
initially appointed on the post of Technical Assistant (Sanskrit) after due advertisement and selection from
7 All. Ram Avadh & Anr. Vs State Of U.P. & Ors.
547
 U.P. Public Service Commission, Allahabad vide order dated 29.03.1979. In due course of time, the petitioner
no.1 was promoted on the post of Manuscript Officer vide order dated 06.05.1998. Similarly, petitioner no.2
was appointed on the post of Technical Assistant (History) in the State Archives, Department of Culture, U.P.,
in the similar manner vide order dated 09.07.1990 and he was promoted on the post of Regional Archives
Officer vide order dated 29.07.1999. Both the petitioners are continuously working on the said posts since the
date of their promotion. The service Rules pertaining to the selection, appointment and other service
conditions of the petitioners were published in the year 1996, which known as 'U.P. State Archives Service
Rules, 1996 (for short 'the Rules') by exercising power under proviso to Article 309 of the Constitution of
India.(Paras 2-5)

Held: (Para 23-26)

## Text

546 INDIAN LAW REPORTS ALLAHABAD SERIES

16. In State of J & K vs. Sudarshan Khakkar AIR 1995 SC 1954 and in Rukmani
Narvekar vs. Vijaya Satardekar, AIR 2009 SC 1013, it has been held that no weight is to be
attached to the probable defence of the accused and at the time of framing of the charge, the Court
has to confine its attention to documents referred to unde Section 173 Cr.P.C. only.

17. In wake of the aforesaid legal position and considering the facts and circumstances of
the present case and the prima facie evidence available on record, this revision appears to have no
force and it is liable to be dismissed.

18. The revision is accordingly dismissed at the admission stage.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.07.2016

BEFORE

THE HON'BLE SATYENDRA SINGH CHAUHAN, J.
THE HON'BLE ANIL KUMAR, J.

Service Bench No.- 1555 Of 2012
&
Service Bench No.- 348 Of 2012

Ram Avadh & Anr. ...Petitioners
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sanjay Kumar

Counsel for the Respondents:
C.S.C., Birendra Singh

Service Law - U.P. State Archives Service Rules, 1996 - Dying in Harness Rules, 1974 - Appointment -
Relaxation - Assistant Director (Conservation) - Officiating charge of Deputy Director as well as Director -
Promotion order dated 05.10.2012 - Appointment dated 28.09.1991 - Writ Petition No.5968 (SS) of 1991 -
Judgment dated 08.02.1994 - Appointment of respondent no.4 has attained finality - Seniority - Inordinate
delay - At such a belated stage - Principles of constructive res-judicata will apply - Controversy has been set
at rest in the earlier judgment - Cannot be reopened - Failed to approach the Court promptly as
contemplated under law - Neither the seniority, which has been settled, can be unsettled at such a belated
stage - Both the writ petitions are devoid of merit and are accordingly dismissed.

Since common question of law and facts are involved in these writ petitions, therefore, the same are being
decided by a common order. Writ Petition No.1555 (SB) of 2012 was filed challenging the promotion order
dated 05.10.2012 passed in favour of respondent no.4. Facts, in short, are that the petitioner no.1 was
initially appointed on the post of Technical Assistant (Sanskrit) after due advertisement and selection from
7 All. Ram Avadh & Anr. Vs State Of U.P. & Ors.
547
 U.P. Public Service Commission, Allahabad vide order dated 29.03.1979. In due course of time, the petitioner
no.1 was promoted on the post of Manuscript Officer vide order dated 06.05.1998. Similarly, petitioner no.2
was appointed on the post of Technical Assistant (History) in the State Archives, Department of Culture, U.P.,
in the similar manner vide order dated 09.07.1990 and he was promoted on the post of Regional Archives
Officer vide order dated 29.07.1999. Both the petitioners are continuously working on the said posts since the
date of their promotion. The service Rules pertaining to the selection, appointment and other service
conditions of the petitioners were published in the year 1996, which known as 'U.P. State Archives Service
Rules, 1996 (for short 'the Rules') by exercising power under proviso to Article 309 of the Constitution of
India.(Paras 2-5)

Held: (Para 23-26)

1. A person should approach the Court well within time and if he does not come to the Court well within time
and at the earliest reasonable possible opportunity and if there is inordinate delay in making the motion for a
writ, the Court will be justified in not exercising the discretionary jurisdiction.

2. The case laws relied upon by the learned counsel for the petitioners are in different context and they could
have been taken into consideration provided the petitioners would have approached this Court within
reasonable time.

3. We, therefore, find that on both the counts, either in respect of challenging the seniority or in respect of
challenging the appointment, petitioners have failed to approach the Court promptly as contemplated under
law and, therefore, their claims at such a belated stage cannot be considered and neither the seniority, which
has been settled, can be unsettled at such a belated stage.

4. Both the writ petitions are devoid of merit and are accordingly dismissed.

Case Law discussed: --

1. Raiwad Manojkumar Nivruttirao vs. State of Maharashtra and another,(2011) 9 SCC 798(Para 12)
2. State of Orissa and another vs. Mamata Mohanty, (2011) 3 SCC 436 (Para 12)
3. S. Jaffar Sahib vs. Secretary, A.P.P.S.C. and others, (1996) 11 SCC 753 (Paras 14, 20)
4. K.R. Mudgal and others vs. R.P. Singh and others, (1986) 4 SCC 531 (Paras 14, 21)
5. Tridip Kumar Dingal and others vs. State of West Bengal and others,(2009)1 SCC 768
(Paras 14,22)

(Delivered by Hon'ble Satyendra Singh Chauhan, J.)

1. Heard learned counsel for the petitioners and learned Standing Counsel as well as
learned counsel for respondent no.4.

2. Since common question of law and facts are involved in these writ petitions, therefore,
the same are being decided by a common order.

3. Writ Petition No.1555 (SB) of 2012 was filed challenging the promotion order dated
05.10.2012 passed in favour of respondent no.4.
548 INDIAN LAW REPORTS ALLAHABAD SERIES

4. Facts, in short, are that the petitioner no.1 was initially appointed on the post of
Technical Assistant (Sanskrit) after due advertisement and selection from U.P. Public Service
Commission, Allahabad vide order dated 29.03.1979. In due course of time, the petitioner no.1 was
promoted on the post of Manuscript Officer vide order dated 06.05.1998. Similarly, petitioner no.2
was appointed on the post of Technical Assistant (History) in the State Archives, Department of
Culture, U.P., in the similar manner vide order dated 09.07.1990 and he was promoted on the post
of Regional Archives Officer vide order dated 29.07.1999. Both the petitioners are continuously
working on the said posts since the date of their promotion.

5. The service Rules pertaining to the selection, appointment and other service conditions
of the petitioners were published in the year 1996, which known as 'U.P. State Archives Service
Rules, 1996 (for short 'the Rules') by exercising power under proviso to Article 309 of the
Constitution of India.

6. After the death of Sri Javed Niyaz Beg, respondent no.4 being the wife of Sri Javed
Niyaz Beg, submitted an application on 23.03.1990 before the Deputy Secretary, Appointment
Section of the State Government and requested therein that since her husband was an officer of
Provincial Civil Services of 1979 batch and at the time of death i.e. on 25.01.1986, he was posted
as Deputy Secretary in Lucknow Development Authority, Lucknow, therefore, she may be given
appointment as per her qualification. She also mentioned her qualification in the said application
form.

7. The then Secretary of Appointment Section of the State Government issued a letter dated
28.03.1990 to the Vice Chairman, Allahabad Development Authority, Allahabad and requested
therein that since the husband of respondent no.4 had died on 25.01.1986 while he was posted as
Deputy Secretary in Lucknow Development Authority, Lucknow, therefore, she may be given
appointment under the Dying in Harness Rules, 1974. As the respondent no.4 was residing at
Allahabad, therefore, she was given appointment in Allahabad Development Authority, Allahabad
vide order dated 04.05.1990 on the post of Junior Clerk.

8. The respondent no.4 thereafter moved an application on 13.05.1991 before the
Appointment Secretary, which was processed in the Government and the Government thereafter,
granted relaxation as contemplated under the Dying in Harness Rules, and appointed the
respondent no.4 on the post of Assistant Director (Conservation). The respondent no.4 thereafter
started functioning on the post in question when in the year 1991, Writ Petition No.5968 (SS) of
1991 was filed challenging the appointment of respondent no.4. The said writ petition was disposed
of finally, by means of judgment and order dated 08.02.1994. In the said writ petition, a specific
ground was taken regarding the objection raised by the petitioners in the present writ petitions.

9. The aforesaid writ petition has been disposed of and the appointment of respondent no.4
has attained finality and she continued to discharge her duties on the post in question, when in the
year 2011, she was given officiating charge of Deputy Director as well as Director, which was
challenged by way of Writ Petition No.348 (SB) of 2012.
7 All. Ram Avadh & Anr. Vs State Of U.P. & Ors.
549
10. The petitioners were fully knowing since the year 1991 that respondent no.4 was
working in the department by virtue of her appointment under the Dying in Harness Rules, but they
did not challenge the appointment of respondent no.4 at any point of time and it has been submitted
by the learned counsel for the petitioners that when the chance of promotion of the petitioners
came, then they realized that she was senior to them and as such, they cannot be promoted and so
they proceeded to challenge the appointment of respondent no.4 in the year 2012 and also
challenged her officiating promotion.

11. Submission of learned counsel for the petitioners is that the appointment of respondent
no.4 was illegal and she could not have been appointed on the post in question under the Dying in
Harness Rules. He also submits that the judgment rendered in Writ Petition No.5968 (SS) of 1991
was not in the knowledge of the petitioners and the petitioners did not challenge the appointment of
respondent no.4 as they were not going to be promoted at the relevant time, but as and when the
chance came in respect of their promotion, then they realized that they cannot be promoted on
account of the fact that respondent no.4 was senior to them.

12. Further submission of learned counsel for the petitioners is that looking to the
qualification and the post on which, respondent no.4 was appointed, she was appointed illegally
and her appointment was illegal for all purposes. Learned counsel for the petitioners, in support of
his submission, has relied upon the judgment of the apex court in the cases of Raiwad
Manojkumar Nivruttirao vs. State of Maharashtra and another (2011) 9 SCC 798; and State of
Orissa and another vs. Mamata Mohanty (2011) 3 SCC 436.

13. Learned counsel for respondent no.4 as well as learned Standing Counsel submitted
that the appointment of respondent no.4 was initially made in the Allahabad Development
Authority, Allahabad on the post of Junior Clerk, but she was not satisfied with the said
appointment as various widows of IAS and PCS Officers were appointed on higher posts and so
she made a representation to the State Government and thereafter the Government processed the
said representation of respondent no.4 and by exercising the power of relaxation as contemplated
under the Dying in Harness Rules, proceeded to appoint respondent no.4 on the post of Assistant
Director. Learned counsel further submits that the appointment of respondent no.4 cannot be
challenged at such a belated stage. The petitioners were very well there in the department at the
time of appointment of respondent no.4. The factum of appointment of respondent no.4 was in the
knowledge of the petitioners, but they chose to keep quiet till 2012 and they have proceeded to
challenge the appointment of respondent no.4 at such a belated stage.

14. Learned counsel for respondent no.4 has placed reliance upon the judgment of the apex
court in the cases of S. Jaffar Sahib vs. Secretary, A.P.P.S.C. And others (1996) 11 SCC 753;
K.R. Mudgal and others vs. R.P. Singh and others (1986) 4 SCC 531; and Tridip Kumar Dingal
and others vs. State of West Bengal and others (2009) 1 SCC 768.

15. We have heard learned counsel for the parties and perused the record.
550 INDIAN LAW REPORTS ALLAHABAD SERIES

16. The husband of respondent no.4 was appointed as a PCS Officer in the year 1979 and
while in service, he died on 25.01.1986. The State Government thereafter took a decision to appoint
respondent no.4 in Allahabad Development Authority, Allahabad on Class-III post, but respondent
no.4 was not satisfied with the said appointment and so she made an application to the State
Government stating various instances of various officers, whose wives have been appointed on
Class-II post and, therefore, she also prayed that she may be given appointment accordingly on any
Class-II or equivalent post.

17. The aforesaid application of respondent no.4 was processed in the Government and the
matter was placed before the then Chief Minister, who granted relaxation on 17.09.1991. After
grant of relaxation by the Government, the appointment letter was issued in favour of respondent
no.4 on 28.09.1991. The appointment of respondent no.4 was thereafter challenged by means of
Writ Petition No.5968 (SS) of 1991, which was disposed of vide order dated 08.02.1994. The
challenge to the appointment of respondent no.4 stood finalized by means of the aforesaid
judgment of the Division Bench of this Court. The petitioner did not choose to challenge the
appointment of respondent no.4 and even if they want to challenge the said appointment, then they
are estopped in view of the fact that a judgment has already been rendered by a Division Bench of
this Court in Writ Petition No.5968 (SS) of 1991 and that has attained finality.

18. The argument of learned counsel for the petitioners that since the petitioners were not
affected at the relevant time, therefore, they did not challenge the appointment of respondent no.4,
cannot be accepted as they were very much there in the department and the factum of appointment
of respondent no.4 was well within their knowledge and if they wished to challenge the said
appointment, they could have done so at an early date, but since 1991, they have been waiting till
2012 and in the year 2012, they have challenged the appointment of respondent no.4 again by
means of the present writ petitions.

19. The principles of constructive res-judicata will apply in the present case. The
controversy has been set at rest in the earlier judgment, therefore, the same cannot be reopened by
means of these writ petitions. Apart from it, challenge to the appointment and promotion cannot be
entertained at such a belated stage.

20. Learned counsel for the petitioners has placed reliance upon the judgment of the apex
court in the case of S. Jaffar Sahib (supra). In Para-4 of the said judgment, the apex court held as
under:

"4. The appellant appeared in person in this Court and contended that
appointments having been made contrary to the Rules of Reservation, the said appointments are
invalid and inoperative. The appellant's right to be appointed was illegally taken away and
therefore this Court should annul the appointment of the respondents forthright and direct
reconsideration of the appellant's appointment. We are unable to accept this contention at this
belated stage. As has been stated earlier the appellant challenged the appointment of the
respondents before the Tribunal in the year 1987 and the Tribunal did not interfere with the
7 All. Ram Avadh & Anr. Vs State Of U.P. & Ors.
551
appointments made in the year 1981 and the said order became final not being challenged in any
higher court. The appellant then filed second round of petition in the year 1990 which was rejected
by the Tribunal on the ground of laches and the application for review stood dismissed on the
ground that there is no error of law apparent on the face of the order which can be reviewed by the
Tribunal. On the admitted facts that appointment of respondents to the post of Deputy Collector
was made in the year 1981, an application before the Tribunal in the year 1990 could not have
been entertained after lapse of 9 years. Then again there is an additional hurdle on the part of the
appellant namely affected persons are not made parties to the proceedings. It is too well settled
that without impleading a person as a party whose rights would be affected, no court/tribunal can
pass any order against him. In the aforesaid premises we find no justification for our interference
under Article 136 of the Constitution with the impugned order of the Tribunal. The appeal is
accordingly dismissed but in the circumstances there will be no order as to costs."

21. Similar position was considered in the case of K.R. Mudgal (supra), wherein the
seniority was sought to be challenged at a belated stage and the same was refused to be entertained.
In Para-7, 8 and 9 of the said judgment, the apex court held as under:

"7. ....................The facts of this case are more or less similar to the facts in R.S.
Makashi v. I.M. Menon (1982) 2 SCR 69. In the said decision this Court observed at page 100 of
the Reports thus: (SCC p.400, para 30)

In these circumstances, we consider that the High Court was wrong in overruling
the preliminary objection raised by the respondents before it, that the writ petition should be
dismissed on the preliminary ground of delay and laches, inasmuch as it seeks to disrupt the vested
rights regarding the seniority, rank and promotions which had accrued to a large number of
respondents during the period of eight years that had intervened between the passing of the
impugned resolution and the institution of the writ petition. We would accordingly hold that the
challenge raised by the petitioners against the seniority principles laid down in the Government
Resolution of March 22, 1968 ought to have been rejected by the High Court on the ground of
delay and laches and the writ petition insofar as it related to the prayer for quashing the said
Government Resolution should have been dismissed.

8. We are in respectful agreement with the above observation.

9. We may also refer here to the weighty observations made by a Constitution
Bench of this Court in Malcom Lawrence Cecil D'Souza v. Union of India, AIR 1975 SC 1269 at
pages 413-414 of the Reports which are as follows: (SCC p.602, para 9)

Although security of service cannot be used as a shield against administrative
action for lapses of a public servant, by and large one of the essential requirements of contentment
and efficiency in pubic services is a feeling of security. It is difficult no doubt to guarantee such
security in all its varied aspects, it should at least be possible to ensure that matters like one's
position in the seniority list after having been settled for once should not be liable to be reopened
552 INDIAN LAW REPORTS ALLAHABAD SERIES

after lapse of many years at the instance of a party who has during the intervening period chosen
to keep quiet. Raking up old matters like seniority after a long time is likely to result in
administrative complications and difficulties. It would, therefore, appear to be in the interest of
smoothness and efficiency of service that such matters should be given a quietus after lapse of some
time."

22. Dealing with the similar issue, the apex court in the case of Tridip Kumar Dingal
(supra), in Paras-59 and 60 observed as under:

"59. We are in respectful agreement with the following observations of this Court
in P.S. Sadasivaswamy v. State of T.N. (1975) 1 SCC 152:
(SCC p.154, para 2)

"2. ..... It is not that there is any period of limitation for the courts to exercise their
powers under Article 226 nor is it that there can never be a case where the courts cannot interfere
in a matter after the passage of a certain length of time. But it would be a sound and wise exercise
of discretion for the courts to refuse to exercise their extraordinary powers under Article 226 in the
case of persons who do not approach it expeditiously for relief and who stand by and allow things
to happen and then approach the court to put forward stale claims and try to unsettle settled
matters."

60. From the facts, it is clear that written examination for the selection of Medical
Technologists was taken as early as in August 1995 and list of more than 1000 candidates was
published in June 1996. By now more than a decade has passed. The applicants who had never
challenged the selection before the Tribunal, before the High Court and before us and have applied
for the first time in the present proceedings which were instituted in 2005 by filing impleadment
applications have thus accepted the position as prevailed in 1996. Qua them, therefore, the matter
can be said to have been "settled". Initiation of proceedings at the instance of those candidates
now will "unsettled the settled position".

23. A person should approach the Court well within time and if he does not come to the
Court well within time and at the earliest reasonable possible opportunity and if there is inordinate
delay in making the motion for a writ, the Court will be justified in not exercising the discretionary
jurisdiction.

24. The case laws relied upon by the learned counsel for the petitioners are in different
context and they could have been taken into consideration provided the petitioners would have
approached this Court within reasonable time.

25. We, therefore, find that on both the counts, either in respect of challenging the seniority
or in respect of challenging the appointment, petitioners have failed to approach the Court promptly
as contemplated under law and, therefore, their claims at such a belated stage cannot be considered
and neither the seniority, which has been settled, can be unsettled at such a belated stage.
7 All. Pramod & Ors. Vs State Of U.P.
553
 26. Both the writ petitions are devoid of merit and are accordingly dismissed.
----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.07.2016

BEFORE

THE HON'BLE BHARAT BHUSHAN, J.
THE HON'BLE ALOK KUMAR MUKHERJEE, J.

Criminal Appeal No.- 1577 Of 1983
&
Criminal Appeal No.- 1586 Of 1983

Pramod & Ors. ...Appellants
Versus
State Of U.P. ...Respondent

Counsel for Appellants:
T.M. Rizvi, D.K. Tiwari, Sanjay Mishra

Counsel for Respondent:
A.G.A

Sexual Offences - Rape - Abduction - Sole testimony of prosecutrix - Credibility - Standard
of proof - Discrepancies - Benefit of doubt - Sections 366 and 376, Indian Penal Code, 1860 -
Section 228-A, IPC.

1. Sole testimony of prosecutrix - Reliability and credibility as the determinative test - No
corroboration required if testimony inspires confidence: It is settled legal position that the sole
testimony of a prosecutrix in a case of sexual assault can form the basis for conviction of the accused without
corroboration on material particulars, provided the testimony is cogent, credible, and trustworthy. The
prosecutrix of a rape case is not an accomplice after the crime. Her testimony must be appraised in the same
manner as the testimony of any other witness. Only when the Court finds it difficult to accept the version of
the prosecutrix at face value may it seek direct or circumstantial corroborative evidence. Minor contradictions
and insignificant discrepancies are not sufficient grounds for rejecting the testimony of the sole prosecutrix if
it is otherwise found trustworthy.

2. Glaring discrepancies - Failure of family members to report disappearance - Unexplained
delay in lodging FIR - Contradictions between FIR, testimony and General Diary entry - Effect:
Where the sole testimony of the prosecutrix is riddled with material discrepancies which are neither minor nor
insignificant, the court cannot sustain the conviction. In the present case, the prosecutrix allegedly remained
in confinement for approximately one and three-quarter months, yet neither her parents, her husband nor any
family member lodged any report of her disappearance, nor did any of them appear before the trial court to
corroborate even the initial part of the prosecution story. The FIR was recorded at 9:10 p.m. whereas the
prosecutrix claimed she reached the police station at 7:00 a.m., creating an unexplained delay of nearly
fourteen hours. The testimony of the Head Constable (PW-5) also contradicted the prosecutrix on the time of
her arrival at the police station. Furthermore, the story set out in the First Information Report and that