# Ram Prakash v. State of U.P. & Ors

- **Citation:** (2023) 10 ILRA 1219
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-04
- **Case number:** Writ-A No. 51641 of 2005
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-prakash-v-state-of-u-p-ors-49316
- **Pages:** 4

## Headnote

Law
-
UP
Intermediate
Education Act, 1921 - Section 16 -
Appointment - Complaint regarding the
age of appointee was made after 27 years
to the appointment - Permissibility -
Petitioner retired from service three
years
back
-
Effect
-
Held,
entertaining a complaint made by the
real brother, who was Principal of the
Institution
not
at
the
time
of
appointment of the petitioner, but
otherwise, after a period of 27 years
and dispensing with the services of the
petitioner in 2005 despite entry in the
service book made in decade of 1980,
the order dislodging of appointment
would be too harsh, particularly in the
circumstances when the petitioner has
already retired from his post three
years ago. (Para 9)

B. Service Law - UP Intermediate
Education Act, 1921 - Section 16 -
Appointment - Officiating principal -
Competence to appoint - Held, insofar
as the
power and competence
of
officiating
Principal
to
appoint
a
person is concerned, it is well settled
that officiating Principal is as good as
the regular Principal. (Para 9)

Writ petition allowed. (E-1)

List of Cases cited:

## Text

10 All. Ram Prakash Vs. State of U.P. & Ors.
1219
of the petitioner to the post of A.D.G.C.
(Crl.) held by him.

21. Accordingly, the writ petition is
dismissed.
----------
(2023) 10 ILRA 1219
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.10.2023

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Writ-A No. 51641 of 2005

Ram Prakash ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Y. D. Sharma, Sri Arun Kumar, Sri
Ramnath

Counsel for the Respondents:
C.S.C., Sri Govind Saran, Sri K.K. Pandey

.................................
A.
Service
Law
-
UP
Intermediate
Education Act, 1921 - Section 16 -
Appointment - Complaint regarding the
age of appointee was made after 27 years
to the appointment - Permissibility -
Petitioner retired from service three
years
back
-
Effect
-
Held,
entertaining a complaint made by the
real brother, who was Principal of the
Institution
not
at
the
time
of
appointment of the petitioner, but
otherwise, after a period of 27 years
and dispensing with the services of the
petitioner in 2005 despite entry in the
service book made in decade of 1980,
the order dislodging of appointment
would be too harsh, particularly in the
circumstances when the petitioner has
already retired from his post three
years ago. (Para 9)

B. Service Law - UP Intermediate
Education Act, 1921 - Section 16 -
Appointment - Officiating principal -
Competence to appoint - Held, insofar
as the
power and competence
of
officiating
Principal
to
appoint
a
person is concerned, it is well settled
that officiating Principal is as good as
the regular Principal. (Para 9)

Writ petition allowed. (E-1)

List of Cases cited:

1. U.P. Power Corp. Ltd. Vs Stya Narain;
2005 (2) ESC 1245

2. Shiv Charan Vs Executive Officer, Nagar
Palika Parishad, Lalitpur & anr.; 2006 (6)
ADJ 310

3. Nani Gopal Dutta Vs U.O.I. & ors.;
(2002) 1 UPLBEC 439

(Delivered by Hon'ble Kshitij
Shailendra, J.)

Ref:
Civil
Misc.
Impleadment
Application No. 9 of 2022

1. By means of this application,
impleadment of present Manager has
been sought.

2. This Court earlier issued notices
on the impleadment application.

3. Office report dated 10.10.2022
indicates that affidavit of service has
been placed on record. Apart from this,
the endorsement made by the Post
Master of the High Court Post Office on
the back of the summons sent to the
proposed respondent No. 6, there is an
endorsement
that
item
delivery is
confirmed.
1220 INDIAN LAW REPORTS ALLAHABAD SERIES

4. In view of above, service of notice
upon proposed respondent No. 6 is deemed
to be sufficient.

5. The impleadment application is
allowed.

6. Let necessary impleadment be
carried out by the learned counsel for the
petitioner during the course of the day.

Order on Writ Petition

1. Heard on merits of the writ
petition.

2. By the order impugned dated
08.07.2005,
the
appointment
of
the
petitioner has been held to be invalid and
contrary to law by the District Inspector of
Schools, Mahamayanagar, mainly on the
ground that at the time of appointment, the
petitioner was aged about 16 years, 6
months and 7 days. The other ground is that
the petitioner is real brother of Principal
and, therefore, his appointment is hit by
section 16 of U.P. Intermediate Education
Act, 1921. In the body of the order, it has
also been observed that the appointment is
beyond the sanctioned strength and the
officiating Principal had no right to appoint
the petitioner.

3. Learned counsel for the petitioner
submits that insofar as the petitioner's age
at the time of appointment is concerned,
there is no dispute that he was 16 years,
6 months and 7 days old. However, the
submission is that the petitioner was
appointed in the year 1977 when the
Institution was not in grant-in-aid and it
came on the grant-in-aid list in the year
1984 and the service book, which was
prepared at that time, clearly mentioned
the same date of birth of the petitioner,
i.e. 31.12.1960. The submission is that
the order impugned has been passed by
entertaining a complaint made by the
petitioner's real brother after a period
of about 27 years of service and though,
admittedly the petitioner's real brother
was Principal of the Institution, insofar
as the date of appointment of the
petitioner is concerned, he was not
Principal and the appointment was
made by one Ved Pal Singh in the
capacity of officiating Principal and
there is no relationship in between the
petitioner and the officiating Principal.

4. He further submits that there is
no
allegation
of
fraud
or
misrepresentation on the part of the
petitioner and once the respondents
continued to permit the petitioner in
service for about three decades, despite
clear entry of date of birth in the
service records, a highly belated order
passed to the detriment of the interest
of the petitioner, is hit by following
authorities of this Court:

(i) U.P. Power Corporation
Limited vs Stya Narain, 2005 (2) ESC
1245,

(ii) Shiv Charan vs Executive
Officer,
Nagar
Palika
Parishad,
Lalitpur and another, 2006 (6) ADJ
310.

5. In the aforesaid authorities,
almost identical situation had arisen
before this Court and the Court, after
noting down the rival contentions,
observed
that
if
the
concerned
petitioner was admitted into service
below age, both parties were equally guilty
and there being no misrepresentation of the
petitioner on record, denying continuance
10 All. Ram Prakash Vs. State of U.P. & Ors.
1221
of service would be illegal. (vide U.P.
Power Corporation Limited vs Satya
Narain) (supra).

6. In Shiv Charan vs Executive
Officer, Nagar Palika Parishad, Lalitpur
and another (supra), the case had arisen
with regard to the date of retirement of the
concerned petitioner and then the Court
observed that if the petitioner was admitted
in service, being minor, and that was
reflected from the date of birth being
recorded in the service book in the year
1983, then remedial measures ought to
have been taken at that point of time, but
having permitted the situation to continue
and hold field for such a long period of
time, then respondents cannot be permitted
to change his date of birth at the fag end of
his career.

7. In the present case, an interim order
was passed in 2005 at the strength thereof,
the petitioner continued to discharge his
duties in the Institution. He has retired after
attaining the age of superannuation in the
year 2020 and it is contended that post
retiral benefits admissible to the petitioner
are not being released only on account of
pendency of the writ petition.

8. Learned Standing Counsel has
vehemently opposed the writ petition and
has argued that officiating Principal had no
right to appoint the petitioner as things
were managed in the Institution at the
relevant point of time. He further submits
that
admittedly
the
petitioner
being
underage at the time of his appointment, it
has rightly been dislodged by the District
Inspector of Schools. He further submitts
that
any
appointment
beyond
the
sanctioned strength would be illegal and,
hence, the order impugned cannot be
interfered with.

9. Having heard the learned counsel
for the parties, I find that entertaining a
complaint made by the real brother, who
was Principal of the Institution not at the
time of appointment of the petitioner, but
otherwise, after a period of 27 years and
dispensing with the services of the
petitioner in 2005 despite entry in the
service book made in decade of 1980, the
order dislodging of appointment would be
too harsh, particularly in the circumstances
when the petitioner has already retired from
his post three years ago. Insofar as the
power and competence of officiating
Principal to appoint a person is concerned,
it is well settled that officiating Principal is
as good as the regular Principal and there
being no contrary decision placed before
this Court, the Court finds that appointment
made by the officiating Principal is not hit
by any legal provision and, even otherwise,
at this stage the Court is not inclined to
enter into such details, particularly in view
of law laid down by the Hon'ble Supreme
Court in the case of Nani Gopal Dutta v.
Union of India & others, reported in
(2002) 1 UPLBEC 439, where the Apex
Court has dealt with almost identical
situation, which is existent in the present
case and in the case before the Supreme
Court also, the appellant concerned had
availed entire benefits of service including
payment of salary at the strength of interim
order passed in his favour and, therefore,
the Supreme Court declined to interfere in
the order impugned before it.

10. Following the decision of Apex
Court in the case of Nani Gopal Dutta
(supra) and the peculiar facts of this case,
as discussed herein-above, the Court is
satisfied that post retiral benefits be
released to the petitioner. The respondents
are directed to compute the retiral benefits
admissible to the petitioner on the basis of
1222 INDIAN LAW REPORTS ALLAHABAD SERIES
his last drawn salary and release the same
in his favour within a period of four
months from the date a certified copy of
this order is produced before them along
with appropriate application.

11. The order impugned dated
08.07.2005 passed by District Inspector of
Schools,
Mahamayanagar
is
hereby
quashed.

12. The writ petition is, accordingly,
allowed.

----------
(2023) 10 ILRA 1222
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.09.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 62592 of 2014

Ram Kishor ...Petitioner
Versus
Mukesh Kumar Sahu & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri K.P. Tiwari, Sri P.K. Jain (Sr. Adv.)

Counsel for the Respondents:
Ms. Rama Goel Bansal

A. Tenancy Law - UP Urban Buildings
(Regulation of Letting, Rent & Eviction)
Act, 1972 - Sections 21(1)(a) & 21(7) -
Eviction - Bona fide need - Right of legal
representatives of landlord - Entitlement
of widow after death of landlord -
Held, Sub-section (7) of S. 21(1)(a)
permits the legal representatives not
only to prosecute the application
further, based on the needs set-up by
the landlord, but also on the basis of
the legal representatives' own needs
- Statute devises a special right in
favour of the legal representatives of
a deceased landlord - High Court
distinguished Sheshambal's case as
there is no provision pari materia to
sub-section (7) in the Kerala Statute.
(Para 31)

B. Tenancy Law - UP Urban Buildings
(Regulation
of
Letting,
Rent
&
Eviction) Act, 1972 - Section 21 -
Landlord-Tenant dispute - Eviction
sought by one of the owner, where
joint ownership exist - Permissibility
- Held, there is no right with the
tenant to say that the premises in his
occupation, of which there are a
number of landlords jointly owning,
cannot
be
partitioned
amongst
themselves, for that right belongs to
the landlords. It is also open to the
landlords to permit anyone on their
behalf to evict the tenant. (Para 33)

C. Tenancy Law - UP Urban Buildings
(Regulation
of
Letting,
Rent
&
Eviction) Act, 1972 - Section 21 -
Eviction proceeding - Comparative
hardship - Widow sought release to
carry occupation of hosiery - Though
the
tenants
have
mentioned
as
alternative accommodation available
to the landlord, but Court below
found the suggested accommodations
are not at all owned or held by the
landlord - Finding of court below,
how far can be interfered with -
Held,
even
if
a
suitable
shop
searched by the tenants could not be
found, and the comparative hardship
of the tenants is evenly balanced, the
conclusion must be in favour of the
landlord.
It
is
only
when
the
comparative hardship outweighs the
landlord's
hardship
that
some
consideration may be permissible -
There is no reason why the shop ought
not to be released in favour of the
present
landlord,
Sahu's
widow,
enabling her to establish her business
and carry it on to earn her livelihood.
(Para
34,
35
and
36)