# Ram Sudhar Prasad v. The State of U.P and others

- **Citation:** (2012) 2 ILRA 847
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-07-25
- **Case number:** Civil Misc. Writ Petition No. 3850 of 2003
- **Bench:** Rajes Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-sudhar-prasad-v-the-state-of-u-p-and-others-42182
- **Pages:** 5

## Headnote

Sri Jitendra Narain Rai

Counsel for the Respondents
C.S.C.

U.P.
Temporary
Govt.
Servant
(termination of Service) Rules 1975termination order-of petitioner a daily
wager on post of Mali-after substantive
vacancy-service regularized-termination
order
questioned-on
ground
after
regularization Temporary Rule 1975 has
no application-held-misconceived-unless
service confirmed status would be as
temporary
employee-no
force
on
technical plea-petition dismissed.

Held: Para 9

By
order
dated
04.09.1987
the
appointment of the petitioner has only
848 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
been regularized. The petitioner's service
has not yet been confirmed. On the
query being made whether any order of
the confirmation of the service has been
passed,
learned
counsel
for
the
petitioner submitted that no order of
confirmation has been passed. Since no
order of confirmation has been passed,
the service of the petitioner under U.P.
Government Servant Confirmation Rules,
1991, was only temporary engagement
and, therefore, the petitioner's service
was covered under Rule, 1975 and
exercise
of
power
dismissing
the
petitioner from service under Rule 1975
can not be said to be illegal.

## Text

2 All] Ram Sudhar Prasad V. The State of U.P and others
847
the concerned accused should be legally
responsible for the offence charged for."

It was further held:

"Vindication of majesty of justice
and maintenance of law and order in the
society are the prime objects of criminal
justice but it would not be the means to
wreak personal vengeance."

8. People, by and large are rapidly
loosing confidence in the criminal justice
system, particularly the subordinate courts
have opted tendency to play safe by
overlooking the will of the people;
underneath there is a feeling that the
judicial officers manning the subordinate
courts are fearful and not bold enough to
deliver justice fearlessly which is soul of
judicial system in India. This particular
aspect is eroding the majesty of the courts
which is suicidal for the national fabric.
Passing orders in a mechanical manner
like
administrative
officers
is
not
expected from a Judge. A Judge has to
keep his fingers on the pulse of the
society.

9. In Sanjay Gandhi v. Union of
India & ors. reported in 178 CAR 107
(SC), Hon'ble Apex Court has held as
under:

"Since a fair trial is not a limping
hearing, we view with grave concern any
judicial insouciance which lengthens
litigation to limit of exasperation."

10.

Judges
right
from
the
subordinate courts till to the highest strata
cannot legislate when the legislature has
provided punishment of fine under
Section 11 of Prevention of Animal
Cruelty Act, how a Magistrate or
Additional Sessions Judge is rejecting bail
application is a matter of grave concern
which casts aspersion against the control
of this Court on the subordinate courts.

11. The Registrar General is directed
to circulate copy of this order to all the
Sessions Judge/C.J.Ms so that justice
should be dispensed with strictly in
accordance with law, in such a fashion
that a message may be transmitted to the
society at large that there is no
deterioration in the judicial system.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.07.2012

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No. 3850 of 2003

Ram Sudhar Prasad

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

Counsel for the Petitioner:
Sri Jitendra Narain Rai

Counsel for the Respondents
C.S.C.

U.P.
Temporary
Govt.
Servant
(termination of Service) Rules 1975termination order-of petitioner a daily
wager on post of Mali-after substantive
vacancy-service regularized-termination
order
questioned-on
ground
after
regularization Temporary Rule 1975 has
no application-held-misconceived-unless
service confirmed status would be as
temporary
employee-no
force
on
technical plea-petition dismissed.

Held: Para 9

By
order
dated
04.09.1987
the
appointment of the petitioner has only
848 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
been regularized. The petitioner's service
has not yet been confirmed. On the
query being made whether any order of
the confirmation of the service has been
passed,
learned
counsel
for
the
petitioner submitted that no order of
confirmation has been passed. Since no
order of confirmation has been passed,
the service of the petitioner under U.P.
Government Servant Confirmation Rules,
1991, was only temporary engagement
and, therefore, the petitioner's service
was covered under Rule, 1975 and
exercise
of
power
dismissing
the
petitioner from service under Rule 1975
can not be said to be illegal.

(Delivered by Hon'ble Rajes Kumar, J.)

1. Heard Sri Jitendra Narain Rai,
learned counsel for the petitioner and Sri
Pankaj Rai, learned Additional Chief
Standing Counsel.

2. By means of the present writ
petition, the petitioner is challenging the
order dated 19.08.2000 passed by District
Magistrate, by which the petitioner has
been dismissed from service and appeal
against the said order has been dismissed.
The
petitioner's
service
has
been
dismissed on the ground that his service is
no longer required, on payment of one
month's salary under U.P. Temporary
Government Servant (Termination of
Service) Rules, 1975 (hereinafter referred
to as "Rule 1975").

3. It appears that the petitioner has
been
engaged
as
daily
wager
on
06.07.1983 on the post of Mali. It appears
that the post of Mali has become
substantive and, therefore, by letter/order
dated
04.09.1987
passed
by
Parganadhikari, Varanasi his appointment
has been regularised on the post of Mali.

4. Learned counsel for the petitioner
submitted that since the service of the
petitioner has been regularised, Rule 1975
does not apply and the petitioner's service
can not be terminated under Rule, 1975.

5. I do not find any substance in the
argument of learned counsel for the
petitioner.

6. The Uttar Pradesh Temporary
Government Servants (Termination of
Service) Rules, 1975 reads as follows:

"1. Short title, Commencement
and application -- (1) There rules may
be called the Uttar Pradesh Temporary
Government Servants (Termination of
Service) Rules, 1975.

(2) This Rule and Rules 2, 3 and 4
shall be deemed to have come into force
on 30th January, 1953 and Rule 5 shall
come into force atonce.

(3) They shall apply to all persons
holding a civil post in connection with
the affairs of Uttar Pradesh and who
are under the rule making control of
Governor, but who do not hold a lien
on
permanent
post
under
the
Government of Uttar Pradesh.

2. Definition -- In these rules
temporary service means officiating or
substantive service on a temporary
post, or officiating service on a
permanent
post
under
the
Uttar
Pradesh Government.

"3. Termination of Service - (1)
Notwithstanding
anything
to
the
contrary in any existing rules or orders
on the subject, the services of a
Government servant in temporary
2 All] Ram Sudhar Prasad V. The State of U.P and others
849
service shall be liable to termination at
any time by notice in writing given
either by the Government servant to
the appointing authority or by the
appointing
authority
to
the
Government servant.

(2) The period of notice shall be
one month.

Provided that the services of any
such Government servant may be
terminated forthwith, and on such
termination the Government servant
shall be entitled to claim a sum
equivalent to the amount of his pay
plus allowances, in any, for period of
the notice or as the case may be period
by for the which such notice falls short
of one month as the same rates at which
he was drawing them immediately
before the termination of his services.

 Provided further that it shall be
open to the appointing authority to
relieve a Government servant without
any notice or accept notice for a shorter
period
without
requiring
the
Government servant to pay any penalty
in lieu of notice.

 Provided also that such notice
given by the Government servant
against whom a disciplinary proceeding
is pending or contemplated shall be
effective only if it is accepted by the
appointing authority, provided in the
case of a contemplated disciplinary
proceeding the Government servant is
informed of the non-acceptance of his
notice before the expiry of that notice."

Short Notes - Services of the
temporary Government servant can be
terminated
at
any
time
without
assigning any reasons -- 1989 (1) SLR
P&H 432: 1986 (6) SLR P&H 378: 1986
(1) SLR Gujarat 501: 1979 (1) SLR 351
(SC): 1986 (1) SLR J&K 396: 1986 (*)
SLR SC 424.

4.
Savings
-
Notwithstanding
anything in these rules, the tenure or
continuance
of
engagement
or
employment of the following categories
of persons shall be governed by the
terms
of
their
engagement
of
employment, and nothing in these rules
shall be construed to require the giving
to them or by them of one month's
notice or pay or penalty in lieu thereof
before
the
termination
of
their
engagement of employment --

(a) persons engaged on contract;

(b) persons not in whole-time
employment of Government;

(c)
persons
paid
out
of
contingencies;

(d) persons employed in a work
charged establishment;

(e)
persons
re-employed
after
superannuation;

(f)
persons
employed
for
a
specified period whose service stand
determined on the expiry of that
period;

(g)
persons
employed
for
a
specified period on condition that the
period may be curtailed at any time ?

(h) persons appointed in shortterm arrangements or vacancies whose
850 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
services stand determined on the expiry
of the arrangement or vacancy.

5. Rescission and saving - (1) The
rule promulgated with Appointment
(B) Department Notification No.230--
II-B-1953, dated January 30, 1953,
shall stand rescinded with effect from
the same dated.

(2)
Notwithstanding
such
rescission, anything done or any action
taken or purporting to be done or
taken under the said rule shall be
deemed to have been done or taken
under these rules.

Short Notes --- Where the services
are terminated on the ground of
unsatisfactory work, unsuitability and
unfitness
and
not
by
way
of
punishment.
There
would
be
no
requirement
of
conducting
the
departmental disciplinary proceedings
and provisions of Article 311 (2) of the
Constitution of India would not be
attracted.

7. Section 4 of Uttar Pradesh
Government Servant Confirmation Rules,
1991 reads as follows:

"4. Confirmation where necessary
- (1) Confirmation of a Government
servant shall be made only on the post
on which he is substantively appointed
(i) through Direct Recruitment, or (ii)
by promotion, if Direct Recruitment is
one of the sources of recruitment, or
(iii) by promotion if the post belongs to
a different service.

(2) Such confirmation shall be
made---

(i)
against
a
post,
whether
permanent or temporary, on which any
other person does not hold a lien;

(ii) subject to the fulfilment of the
conditions of confirmation laid down in
the relevant service rules or executive
instructions issued by Government, as
the case may be;

(iii)
formal
order
shall
be
necessary
to
be
issued
by
the
Appointing Authority with regard to
confirmation;

Explanation - Notwithstanding the
fact that a Government servant is
confirmed anywhere else, if he is
directly recruited on any post or is
promoted to a post where Direct
Recruitment is one of the sources of
recruitment,
he will have
to
be
confirmed thereon."

8. Section 4 (2)(ii) of Confirmation
Rules, 1991 provides that for the
confirmation on the substantive post a
formal order is necessary to be passed by
appointing authority.

9. By order dated 04.09.1987 the
appointment of the petitioner has only
been regularized. The petitioner's service
has not yet been confirmed. On the query
being made whether any order of the
confirmation of the service has been
passed, learned counsel for the petitioner
submitted that no order of confirmation
has been passed. Since no order of
confirmation has been passed, the service
of the petitioner under U.P. Government
Servant Confirmation Rules, 1991, was
only
temporary
engagement
and,
therefore, the petitioner's service was
covered under Rule, 1975 and exercise of
2 All] M/s Alka Ice and Cold Storages Pvt. Ltd. & others V. State of U.P & others
851
power dismissing the petitioner from
service under Rule 1975 can not be said to
be illegal.

10. In view of the above, there is no
merit in the writ petition. The writ petition
fails and is accordingly, dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.05.2012

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE A.N. MITTAL, J.

Civil Misc. Writ Petition No.10154 of 2012

M/s Alka Ice and Cold Storages Pvt. Ltd.
and others

 ...Petitioners
Versus
State of U.P. & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Rajesh Kumar Tiwari

Counsel for the Respondents:
Ms. Sudha Pandey
C.S.C.

U.P. Agricultural Credit Act1973-Section11-A-Recovery
of
loan
of
Rs.
3,56,99,410/-from M/S Alka Ice and
Cold Storage-as arrears of land revenue -
objection the amount excess than 10 Lac
can not be recovered as arrears of land
revenue-except
under
provisions
of
'Debt Recovery Act' or by suit for
recovery-held-misconceived-Act
of
73
being
Special
Act-providing
specific
mode of recovery after notice and appeal
by following Principle of Natural Justice -
attribute to Act of 1993 for protection of
the interest of borrower as well the
interest of bank for speedy recovery of
dues sponsored by Central or State Govt.
amount even exceed to Rs. 10 Lac can be
recovered
under
Act
of
73-petition
dismissed.

Held: Para 24

In the present case we are concerned
with the recovery under the U.P. Act of
1973, which is a special Act, which not
only provides for a specific modes of
recovery from movable, immovable and
the personal security, it also provides for
an order to be passed for recovery after
notice and an appeal to the appellate
authority, serving the principle of natural
justice. The U.P. Act of 1973 thus has all
the attributes of the Act of 1993 to
protect the interest of the borrower as
well as the speedy recovery of the dues
of the bank sponsored by the Central
Government
and
State
Government
under its various schemes for the benefit
of
agriculturists
or
for
agricultural
purposes. The recovery of agricultural
debt, even if the outstanding amount is
more than Rs.10 lacs, can thus be
pursued under the U.P. Act of 1973.
Case law discussed:
1993 (76) Company Case 523 (SC)

(Delivered by Hon'ble Sunil Ambwani, J.)

1. We have heard Shri Rajesh Kumar
Tiwari, learned counsel for the petitioner.
Ms. Sudha Pandey appears for the Punjab
National Bank-respondent no.6. Learned
Standing Counsel appears for the State
respondents.

2.

The
pleadings
have
been
exchanged and thus with the consent of the
parties, the writ petition was heard.

3. This writ petition is directed
against the recovery proceedings initiated
by the Punjab National Bank against the
petitioner by forwarding a recovery
certificate to the Collector, Aligarh under
Section 11A of the U.P. Agricultural
Credit Act, 1973 (for short U.P. Act of
1973) read with Rule 27 of the U.P.
Agricultural Credit Rules, 1975, for
recovering an amount of Rs.3,56,99,410/-