# Ram Sewak Sharma v. State of U.P. and others

- **Citation:** (2008) 3 ILRA 939
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-09-22
- **Case number:** Civil Misc. Writ Petition No. 18929 of 2005
- **Bench:** Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-sewak-sharma-v-state-of-u-p-and-others-41276
- **Pages:** 6

## Headnote

Sri. H.R. Mishra
S.C.

U.P. Primary Agricultural Co-operative
Credit
Societies
Centralised
Service
Rules 1976-as amended by 12th amended
Rules
2004-power
of
appellate
authority-against the order of dismissal
by DAC-RAC allowed the appeal and
modified the order of dismissal with
reinstatement
by
withholding
two
increments
subject
to
payment
of
embezzled
amount-DAC
refused
the
joining even after deposit of damaged
amount-held-during pendency of appeal
the appellate authority becomes the
State Cadre Authority-as such after
30.06.2004 RAC has no authority to
decide the appeal-order passed by DAC
justified-direction issued to decide the
revision.

Held: Para 16

In the present case the right of appeal
has not been taken away but the forum
has been changed. The RAC which was
vested earlier with power to hear the
appeal against an order of the DAC has
been
deleted
by
virtue
of
(12th
Amendment) Rules, 2004 and the power
to hear the appeal is vested in the State
Cadre Authority w.e.f. 30/6/2004. The
RAC being not in existence after the
940 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
amendment rules, there is no question of
its exercising any jurisdiction in pending
appeals, when the forum was changed
and the power to hear appeal was vested
in the State Cadre Authority the pending
appeals were required to be heard by the
new forum created. The RAC was not
even in existence after 30/6/2004,
therefore, there was no occasion for it to
hear any appeal by it. The judgement
relied
on
by
the
counsel
for
the
petitioner in the above case does not
help the petitioner in the present case.
Case law discussed:
JT 1996 (4) SC 1990.

## Text

3 All] Ram Sewak Sharma V. State of U.P. and others
939
instead he should file a civil suit. This
part of the order of the learned single
Judge is more in the nature of advisory
jurisdiction and amounts to pre-closing
the doors of justice for the appellant in
future. This has been done even before the
appellant has knocked the doors of justice
again. We cannot subscribe to the view
taken by the learned single Judge in this
regard as it is not for the courts to give
advise. The appellant has not solicited the
advise and there was no question of such
solicitation as the order has not yet been
passed by the District Magistrate.

7. Besides the above, the court is not
supposed to pass orders in vacuum or in
anticipation so as to foreclose the light of
the appellant to invoke the extra ordinary
jurisdiction of the Court in future for a
cause of action which has not yet arisen.

8. In view of aforesaid facts and
circumstances, we are of the opinion that
the order passed by the learned single
Judge exceeds jurisdiction and, therefore,
if cannot be sustained under law.
Accordingly, we allow the appeal and setaside the judgment and order of the
learned single Judge dated 1.9.2008 and
send
back
the
matter
before
the
appropriate Bench of the learned single
Judge for decision afresh on merits

9. The special appeal is allowed as
above. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.09.2008

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 18929 of 2005

Ram Sewak Sharma

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

Counsel for the Petitioner:
Sri. S.K. Yadav

Counsel for the Respondents:
Sri. H.R. Mishra
S.C.

U.P. Primary Agricultural Co-operative
Credit
Societies
Centralised
Service
Rules 1976-as amended by 12th amended
Rules
2004-power
of
appellate
authority-against the order of dismissal
by DAC-RAC allowed the appeal and
modified the order of dismissal with
reinstatement
by
withholding
two
increments
subject
to
payment
of
embezzled
amount-DAC
refused
the
joining even after deposit of damaged
amount-held-during pendency of appeal
the appellate authority becomes the
State Cadre Authority-as such after
30.06.2004 RAC has no authority to
decide the appeal-order passed by DAC
justified-direction issued to decide the
revision.

Held: Para 16

In the present case the right of appeal
has not been taken away but the forum
has been changed. The RAC which was
vested earlier with power to hear the
appeal against an order of the DAC has
been
deleted
by
virtue
of
(12th
Amendment) Rules, 2004 and the power
to hear the appeal is vested in the State
Cadre Authority w.e.f. 30/6/2004. The
RAC being not in existence after the
940 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
amendment rules, there is no question of
its exercising any jurisdiction in pending
appeals, when the forum was changed
and the power to hear appeal was vested
in the State Cadre Authority the pending
appeals were required to be heard by the
new forum created. The RAC was not
even in existence after 30/6/2004,
therefore, there was no occasion for it to
hear any appeal by it. The judgement
relied
on
by
the
counsel
for
the
petitioner in the above case does not
help the petitioner in the present case.
Case law discussed:
JT 1996 (4) SC 1990.

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Shri S.K Yadav, learned
counsel for the petitioner; Shri H.R.
Mishra and the learned Standing Counsel
for the respondents.

2. Counter and rejoinder affidavits
have been exchanged, the writ petition is
being finally decided.

3. By this writ petition, petitioner
has prayed for quashing the order dated
10/2/2005, Annexure-10 to the writ
petition
passed
by
the
District
Administrative Committee (hereinafter
called the "DAC") whereby it was stated
that no action can be taken on the joining
report of the petitioner since the order of
the Regional Administrative Committee
(hereinafter called the "R.A.C.'') dated
08/7/2004
is
subsequent
to
(12th
Amendment) Rules, 2004.

4. Brief facts necessary for deciding
the writ petition are; the petitioner was
appointed
as
cadre
Secretary
on
18/12/1976. The service conditions of the
cadre Secretary are governed by Rules
namely, The Uttar Pradesh Primary
Agricultural
Co-operative
Societies
Centralised
service
Rules,
1976
(hereinafter called the " Rules 1976"). On
certain allegations, the petitioner was
placed under suspension and disciplinary
proceedings were initiated against him
and by an order dated 06/8/1998 the
petitioner was removed from service by
the District Administrative Committee
(hereinafter called the "DAC"). On proof
of certain charges which also included the
charges of embezzlement the petitioner
filed an appeal which was dismissed on
23/1/1999 by the Regional Administrative
Committee. Petitioner claims to have filed
a review appeal before the appellate
authority when the said review appeal was
pending. The petitioner filed Writ Petition
No. 3700 of 2004 which was disposed of
by this Court on 03/2/2004 with the
observation that since the petitioner
having already pursuing his alternative
remedy of representation/review, the
petition
cannot
be
entertained.
Subsequently, the RAC issued notice on
17/3/2004, asking the petitioner to appear
before
the
RAC,
and
the
RAC
subsequently fixed 16/4/2004 and on that
date the RAC took a decision by which
the punishment of removal/dismissal was
modified by punishment of stoppage of
one increment with a direction to deposit
certain
amount
and
thereafter
reinstatement of the petitioner without
any
back
wages
was
ordered.
In
pursuance of the order of the RAC dated
7/7/2004
petitioner
claims
to
have
deposited the amount as directed by the
RAC and then submitted a joining report
before the DAC. The DAC on the joining
report of the petitioner passed the
impugned order dated 10/2/2005 refusing
to accept the joining of the petitioner on
the ground that the relevant rules having
been amended by (12th Amendment)
3 All] Ram Sewak Sharma V. State of U.P. and others
941
Rules, 2004 w.e.f. 30/6/2004, no order
could be made by RAC dated 08/7/2004.

5. This Court while entertaining the
writ petition issued notice on 17/3/2005 to
the petitioner to show cause as to why the
punishment awarded to him be not
enhanced. Petitioner was asked to file
supplementary affidavit in reply to which
he has filed supplementary affidavit on
12/7/2005.

6. Learned counsel for the petitioner
challenging the order contended that the
mere fact that by (12th amendment) Rules,
2004 the appellate authority has been
changed and shall not affect the right by
the RAC to decide the appeal. He
submitted that there was no provision in
the (12th Amendment) Rules, 2004 as to
what will happen with regard to the
pending appeals. The pending appeal has
to be decided by the appellate authority
and the RAC thus clearly had jurisdiction
to decide the appeal and the order dated
08/7/2004 was in accordance with law.
He has placed reliance on the judgement
of the Hon'ble Supreme Court JT 1996 (4)
SC 1990, Commissioner of Income Tax,
Bangalore Vs. Smt. R. Sharadamma .

7. A counter affidavit has been filed
on behalf of the respondent no. 4 in which
it was stated that by (12th Amendment)
Rules, 2004, U.P. Primary Agricultural
Co-operative Credit Societies Centralised
Service, 1976 the appellate authority has
been changed and after 30/6/2004, the
RAC was no longer the appellate
authority, hence it had no jurisdiction to
decide the appeal and the appellate
authority has now become the State Cadre
Authority, hence the appeal if any could
have been pressed before the State cadre
Authority only. It has been stated in the
counter affidavit that the DAC has rightly
issued
the
impugned letter to the
petitioner.
I have considered the contention of the
parties and perused the record.

8. The Rules, 1976 have been
framed under the Uttar Pradesh Cooperative Societies Act, 1965 (hereinafter
called the "Act, 1965") for regulating the
service conditions of the cadre Secretaries
and the petitioner is governed by the
Rules, 1976. Under the said 1976 Rules,
the DAC is the appointing authority and
the regulations have been framed under
Rule 30 which provides for disciplinary
inquiry
against
a
member
of
the
centralised service. Rules, 1976 provide
for constitution of the State cadre
Authority and RAC under Rule 7.

9. According to Regulation 1978,
the RAC is the appellate authority. The
1976 Rules were amended by the 12th
Amendment Rules 2004 w.e.f. 30/6/2004.
The said rules were published in the
gazette and by virtue of Rule 1 sub-rule 2
they came into effect from the date of
publication in the gazette. Rule 7 of the
aforesaid
rules
which
provides
for
constitution of the State Cadre Authority,
RAC and DAC was amended. The
provision of RAC has been deleted w.e.f.
30/6/2004.

"Rule 8 of Rules 1976 provides for power
and function of the State Cadre Authority.
Rule 8 (i) sub-rule 10 as amended by (12th
Amendment) Rules, 2004 provides as
under:
Rule 8 (1) The authority shall be the Chief
Policy making body for the centralised
service.
The
Authority
shall
have
following
powers,
duties
and
responsibilities: -
942 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
(i) .........
(ii) ..........

(x) to hear appeals against the orders
passed by the District Administrative
Committee.

10. Thus, by the Uttar Pradesh
Primary Agricultural Co-operative Credit
Societies Centralised Service (Twelfth
Amendment) Rules, 2004 the RAC has
been deleted and the power to hear the
appeal which was earlier vested in the
RAC is now vested in the State Cadre
Authority by virtue of amendment in Rule
8. Earlier by virtue of Rule 11 prior to
(12th Amendment Rules, 2004) the power
to hear appeal against the order of the
DAC was vested in the RAC.

Rule
11
sub
rule
(iv)
(prior
to
amendment) is quoted below:

"11. Powers and duties of Regional
Administrative Committee.-(l) Subject
to the policy laid down and guidelines and
instructions issued by the Authority, the
Regional Committee shall be responsible
for the general supervision and control of
the members of the centralised service in
the region. The Regional Committee shall
have also the following duties and
responsibilities-
(i) .......

(iv) To hear and decide appeals arising
from
the
official
orders
of
major
punishment (i.e. dismissal, removal or
reduction in rank) passed by the District
Committee;

11. Rule 11 quoted above has been
deleted by the (12th Amendment) Rules,
2004. Thus, the effect of the amendment
by (12th Amendment) Rules, 2004 was
that the power to hear appeal is
transferred and vested in the State cadre
Authority and the RAC which was
functioning prior to amendment has been
deleted. Thus, in the present case when
the order was passed by the RAC dated
07/7/2004 it was not in existence and it
having been deleted on 30/6/2004. The
RAC was not having any appellate
jurisdiction w.e.f. 30/6/2004 and the
power to hear appeal was vested in the
sate cadre Authority.

12. In view of the above, the DAC
did not commit any error in not taking any
action in pursuance of the resolution dated
07/7/2004 of RAC and no error has been
committed by the DAC in not accepting
the joining report of the petitioner.

13. Learned counsel for the
petitioner has placed reliance on the
judgement
of
Apex
Court
in
Commissioner of Income Tax (supra). In
the said case before the Apex Court the
penalty proceedings were pending before
the Inspecting Assistant Commissioner
under section 274 (2) of the Income Tax
Act, 1961 (hereinafter called the "Act,
1961.") certain amendments were made
under Section 274 (2) of the Act, 1961,
consequence of which was that no penalty
proceedings could be proceeded with
when
the
particulars
having
been
concealed was not of more than Rs.
Twenty Five Thousand.

14. It was contended before the
Apex Court that even if the amendment
has been made in Section 274 (2) of the
Act, 1961 the same shall have no effect
on pending proceedings of the penalty
which has been referred to by the
Inspecting Assistant Commissioner. The
Apex Court referring to its earlier
3 All] Ram Sewak Sharma V. State of U.P. and others
943
judgement laid down the following in
paragraphs 8 and 10.

"8.The Court then observed that once
a reference was validly made to the
Inspecting Assistant Commissioner he did
not lose the jurisdiction to deal with the
matter on account of the aforesaid
Amendment Act. It pointed out that the
Amending Act does not contain any
provision that the references validly
pending before the Inspecting Assistant
Commissioner should be returned without
passing any final order if the amount of
income in respect of which the particulars
have been concealed did not exceed
Rupees twenty five thousand. The said
circumstance, it held, supported the
inference drawn by the Court that the
Inspecting
Assistant
Commissioner
continued to have jurisdiction to impose
penalty. The Court observed:
"It is also true that no litigant has any
vested right in the matter of procedural,
law but, where the question is of change
of forum, it ceases to be a question of
procedure only. The forum of appeal or
proceedings is a vested right as opposed
to pure procedure to be followed before a
particular forum. The right becomes
vested when the proceedings are initiated
in the Tribunal or the court of first
instance and unless the Legislature has,
by express words or by necessary
implication, clearly so indicated, that
vested right will continue in spite of the
change of jurisdiction of the different
Tribunals or forums."

10.
In
our
opinion,
the
principle
underlying the said decision is squarely
applicable herein. In this case also, a
reference was made to the Inspecting
Assistant Commissioner in accordance
with the law in force on the date of
reference. Once the Inspecting Assistant
Commissioner was thus seized of the
matter, he did not lose seizin thereof on
account of the deletion of sub-section (2)
of section 274. This is also the principle
underlying Section 6 of the General
Clauses Act."

15. The proposition which was laid
down by the Apex Court in the said case
was that the forum of appeal is a vested
right. The right becomes vested when the
proceedings are initiated in the Tribunal
or a Court and unless the legislature has
by
express
words
and
necessary
implications clearly indicate, the vested
right will continue irrespective of change
of jurisdiction of different Tribunals or
forum. There cannot be any dispute to the
proposition as laid down by the Apex
Court in the said case. However the
present case has a distinguishing feature.

16. In the present case the right of
appeal has not been taken away but the
forum has been changed. The RAC which
was vested earlier with power to hear the
appeal against an order of the DAC has
been
deleted
by
virtue
of
(12th
Amendment) Rules, 2004 and the power
to hear the appeal is vested in the State
Cadre Authority w.e.f. 30/6/2004. The
RAC being not in existence after the
amendment rules, there is no question of
its exercising any jurisdiction in pending
appeals, when the forum was changed and
the power to hear appeal was vested in the
State Cadre Authority the pending appeals
were required to be heard by the new
forum created. The RAC was not even in
existence after 30/6/2004, therefore, there
was no occasion for it to hear any appeal
by it. The judgement relied on by the
counsel for the petitioner in the above
944 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
case does not help the petitioner in the
present case.

17. With regard to the notice issued
by this Court on 17/3/2005, as to why the
punishment awarded to the petitioner be
not enhanced, learned counsel for the
petitioner contended that under the 1978
Regulations, the power is vested with the
appellate authority even to enhance the
punishment
after
notice,
hence
no
consideration of such issue is required in
this case.

18. In view of the foregoing
discussion, it is clear that the review
appeal of the petitioner was to be heard, if
at all, by the State Cadre Authority and
the RAC did net have any jurisdiction to
decide the appeal and the order of the
RAC dated 07/07/2004 was without
jurisdiction. The DAC has rightly took a
decision not to act on such decision.
However, in view of the fact that a view
has been taken that power to hear the
appeal only vested in the State Cadre
Authority, it will be open for the
petitioner to submit a copy of his review
appeal which was filed before the RAC at
the time when it had jurisdiction before
the State Cadre Authority as per (12th
Amendment) Rules, 2004, who may
consider the review appeal of the
petitioner
and
take
an
appropriate
decision in accordance with law.

19. As submitted by the learned
counsel for the petitioner, since the
appellate authority has also the power to
enhance the punishment, it is not
necessary to take any decision in
consequence to notice dated 17/3/2005,
and all matters be left open to the
appellate authority to take decision
accordingly.

20. In the result, the prayer of the
petitioner for quashing the order dated
10/2/2005 passed by the DAC is refused.
However, liberty is given to the petitioner
to file the copy of the review appeal along
with the copy of this order before the
State Cadre Authority which is now the
appellate authority who after receiving the
copy of the review appeal may consider
and take an appropriate decision in
accordance with law. In view of the fact
that the matter is pending for quite a long
period, the said appellate authority snail
expeditiously decide the review appeal
preferably within a period of six months
from the date of filing a certified copy of
the order before it

21. It is made clear that this Court is
not expressing any opinion on the merits
of the case and it is for the appellate
authority to look into the entire facts and
circumstances of the case and take a
decision in accordance with law.

Subject to above, the writ petition is
disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.08.2008

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 4226 Of 2002

State of U.P.

...Petitioner
Versus
The Presiding Officer, Labour Court and
another

 ...Respondents

Counsel for the Petitioner:
S.C.