# Rohitash Kumar v. State of U.P. & Ors

- **Citation:** (2022) 8 ILRA 1055
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-14
- **Case number:** Writ A No. 13567 of 2009
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rohitash-kumar-v-state-of-u-p-ors-48708
- **Pages:** 4

## Headnote

1056 INDIAN LAW REPORTS ALLAHABAD SERIES
Civil Law - Appointment - Gram Rojgar
Sewak - G.O. dated 23.11.2007 (Parag) -
Bar on engagement of relatives as Gram
Rozgar Sewak - Any person who is relative
of concern Gram Panchayat Pradhan, UpPradhan, member or secretary cannot be
appointed as a Gram Rozgar Sewak,
Relatives
means

father,
mother,
grandfather, father-in-law (paternal or
maternal relation), son, grandson, son-inlaw, sister, daughter-in-law, wife and
daughter - Held - even though the word
'brother' is not included in the list of
relatives but considering that word 'sister'
is included, in the list of relatives 'brother'
is deemed to be included - In para (छ) of
G.O. word used is tatparya/ "तात्पर्य", which
means 'purport', which is not a synonym
of words 'means' or 'include' - Therefore,
the
list
of
relatives
mentioned
in
Government
Order
dated
23.11.2007
cannot be considered to be exhaustive
rather it is only enumerative. (Para 7)

Candidature of petitioner for appointment to the
post of Gram Rojgar Sewak, was rejected on the
ground that his brother was a Member of
concerned Gram Panchayat - Held - No
Illegality.

Dismissed. (E-5)

## Text

8 All. Rohitash Kumar Vs. State of U.P. & Ors.
1055
learned trial Court has allowed the
application of the prosecution under
Section 33 of the Evidence Act.

14. Short question, which false for
consideration by this Court, is whether the
evidence led in the trial of Case No.04 of
2001, which case got dismissed on the
finding recorded by the learned trial Court
that the sanction order for prosecution of
the accused-applicant under Section 19 of
the PC Act was improper and invalid, can
be taken/read in the subsequent trial in
Case No.502 of 2016. The Supreme Court
in the case of Nanjappa V. State of
Karnataka (supra) was dealing with the
issue that whether the trial, after proper
sanction, would amount to double jeopardy
or not. The question regarding applicability
of Section 33 of the Evidence Act was not
involved in the said case. It cannot be said
that the evidence, recorded in trial of Case
No.04 of 2001, was not in judicial
proceedings. The proceedings of earlier
trial and subsequent trial both are judicial
proceedings.

15. According to Section 33 of the
Evidence Act, the relevancy of certain
evidence
for
proving,
in
subsequent
proceeding, the evidence given by a
witness in a judicial proceeding, or before
any person authorized by law to take it, is
relevant for the purpose of proving, in a
subsequent judicial proceeding, or in a later
stage of the same judicial proceeding. So
far as the proceedings of the present case
are concerned, requirement of Section 33 of
the Evidence Act are fully satisfied. It is not
case of the accused-applicant that the
requirement of the Section 33 of the
Evidence Act are not satisfied in the present
case. It is not the case of the accusedapplicant that the earlier Court, before
which the trial of Case No.04 of 2001 was
conducted, did not have jurisdiction over
the offence, but the accused-applicant was
acquitted only on the ground that there was
no proper and valid sanction under Section
19 of the PC Act for his prosecution. There
is a distinction between complete lack/want
of jurisdiction and existence of jurisdiction
and its irregular and improper exercise.

16.

Considering
the
aforesaid
discussions, I am of the opinion that
ingredients of Section 33 of the Evidence
Act are fully applicable in the facts of the
present case. The accused-applicant is not
prejudiced in any manner by the impugned
order. The evidence, recorded earlier, was
in judicial proceedings, and the evidence
cannot become non-est merely on the
ground that the proceedings were dropped
because of improper/invalid sanction under
Section 19 of the PC Act. Therefore, I do
not find any error committed by the learned
trial Court in allowing the application of
the CBI and, thus, the present application
fails, which is hereby dismissed.
----------
(2022) 8 ILRA 1055
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.07.2022

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ A No. 13567 of 2009

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

Counsel for the Petitioner:
Sri R.P.S. Chauhan

Counsel for the Respondents:
C.S.C., Sri Anuj Kumar, Mohit Singh
1056 INDIAN LAW REPORTS ALLAHABAD SERIES
Civil Law - Appointment - Gram Rojgar
Sewak - G.O. dated 23.11.2007 (Parag) -
Bar on engagement of relatives as Gram
Rozgar Sewak - Any person who is relative
of concern Gram Panchayat Pradhan, UpPradhan, member or secretary cannot be
appointed as a Gram Rozgar Sewak,
Relatives
means

father,
mother,
grandfather, father-in-law (paternal or
maternal relation), son, grandson, son-inlaw, sister, daughter-in-law, wife and
daughter - Held - even though the word
'brother' is not included in the list of
relatives but considering that word 'sister'
is included, in the list of relatives 'brother'
is deemed to be included - In para (छ) of
G.O. word used is tatparya/ "तात्पर्य", which
means 'purport', which is not a synonym
of words 'means' or 'include' - Therefore,
the
list
of
relatives
mentioned
in
Government
Order
dated
23.11.2007
cannot be considered to be exhaustive
rather it is only enumerative. (Para 7)

Candidature of petitioner for appointment to the
post of Gram Rojgar Sewak, was rejected on the
ground that his brother was a Member of
concerned Gram Panchayat - Held - No
Illegality.

Dismissed. (E-5)

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. This writ petition is filed seeking
following reliefs:

"i. Issue a writ, order or direction
in the nature of certiorari to quash the
appointment of respondent no. 6 Ajay
Kumar on the post of Gram Rojgar Sewak
in Gram Panchayat Nagaliya Balloo, Block
Pawasa, District Moradabad, made by the
respondent
no.
5
Gram
Panchayat
Moradabad on 04.04.2008 approved by the
District
Administrative
Committee
respondent no. 2 to 4 (Annexure no. 1 and 4
to the writ petition).

ii. Issue a writ, order or direction
in the nature of Mandamus, commanding
the respondent no. 1 to 5 to appoint the
petitioner on the post of Gram Rojgar
Sewak in Gram Panchayat Nagaliya,
Block- Pawasa, District Moradabad and
permit him for discharging his duty,
accordingly."

2. Sri R.P.S. Chauhan, learned
counsel for petitioner submits that ground
to reject candidature of petitioner for
appointment to the post of Gram Rojgar
Sewak, was that his brother was a Member
of concerned Gram Panchayat at relevant
time,
who
though
resigned but his
resignation
was
accepted
after
the
resolution was passed by Gram Panchayat
rejecting candidature of petitioner. Learned
counsel for petitioner heavily relied on para
(ि)
of
Government
Order
dated
23.11.2007, which is reproduced as under:

"छ- सम्बन्धिय ों के ग्राम र जगार
सेवक के रुप में रखने पर र क- िोई भी
व्यखि, जो संबंदित ग्राम पंिायत िे प्रिान, उप
प्रिान, सिस्य अथिा सदिि, पंिायत िा संबंिी
है ग्राम रोजगार सेिि िे रुप में नहीं रिा जा
सिेगा। सम्बन्धिय ों का तात्पयय पपता, माता,
दादा, श्वसुर (पपतृ अथवा मातृ सोंबोंधी) पुत्र,
पौत्र, दामाद, पुत्र-वधू, बहन, पपत, पत्नी तथा
पुत्री से है।"

3. Learned counsel for petitioner
further contended that relation of ''brother'
was not included within the purport of
relatives of a candidate in above referred
provision, therefore, the basis of resolution
of rejecting candidature of petitioner on the
ground that his brother was elected member
of Gram Panchayat, though his resignation
was accepted later on, was erroneous and
contrary to above referred provision.
8 All. Rohitash Kumar Vs. State of U.P. & Ors.
1057
Learned counsel further submits that the
selected candidate has not joined the post
and no further recruitment process was
undertaken thereafter and post is still lying
vacant. The respondents have accepted the
averments made in para 8 of writ petition in
their counter affidavit.

4. Per contra, Sri P.K. Srivastava,
learned Additional Chief Standing Counsel
appearing for State-Respondents, submits
that ''brother' is deemed to be included in
above referred provision as well as it is a
contractual appointment, initially for one
year and could be extended from time to
time. The averment made in para 8 of the
writ petition is specifically denied and not
accepted in counter affidavit.

5. Heard learned counsel for parties
and perused the material available on
record.

6. Learned counsel for petitioner has
heavily relied on the relations mentioned
in para (ि) of Government order which
does not include ''brother'. It is not in
dispute that brother of petitioner was a
Member of Gram Panchayat at the
relevant point of time, as his resignation
from said elected post was accepted
subsequently.

7. In the above referred para (ि)
word used is "तात्पयि", which means
''purport',
as
mentioned
in
"Vidhi
Shabdavali", Universal's Law Dictionary
(Reprint 2011), at page no. 746, which is
not a synonym of words ''means' or
''include'. Therefore, the list of relatives
mentioned in Government Order dated
23.11.2007 cannot be considered to be
exhaustive rather it is only enumerative. In
the list of relation ''sister' is included.
Therefore,
an
interpretation
that
''brother' could not be included being not
mentioned, would frustrate the very
object of such bar, whereby the relatives
of
elected
Pradhan,
Up-pradhan,
Member etc. of Gram Panchayat were
barred to be appointed on the post of
Gram Rojgar Sewak. Such interpretation
would lead to absurd consequences, that
a candidate, who is sister of elected
Pradhan, Up-pradhan, Member etc. of
Gram Panchayat, could not be selected
on the post of Gram Rojgar Sewak but if
the brother of same candidate is on
similar position, he would be selected.
This interpretation cannot be allowed.
Therefore,
even
though
the
word
''brother' is not included in the list of
relatives but considering that word
''sister' is included, in my view, in the
list of relatives ''brother' is deemed to be
included.

8. The object of para (ि) of
Government Order dated 23.11.2007 is,
not to appoint relatives of elected
Pradhan, Up-pradhan, Member etc. of
Gram Panchayat on the post of Gram
Rojgar
Sewak,
therefore,
even
the
brother of a candidate, who is in the said
position is also deemed to be included in
the aforesaid list of relatives. The list of
relatives includes all the blood relations
but not the ''brother', who is also a blood
relation, therefore, it appears to be a
bona fide mistake. The word ''तात्पयि'
(purport) means to include relations
which may likely to influence the
procedure of selection for the post of
Gram Rojgar Sewak. Therefore, even if
the ''brother' is not mentioned in the said
list of relatives, this Court is of the view
that ''brother' is deemed to be included,
as he is also likely to influence the
1058 INDIAN LAW REPORTS ALLAHABAD SERIES
selection procedure as a ''sister' could
influence.

9. Even otherwise, the recruitment in
question was started in the year 2008 and this
writ petition was filed in the year 2009,
which is pending for a long time and
meanwhile much water has flown, therefore,
now at this stage, no relief, as prayed by
petitioner, could be granted.

10. In view of above discussion, I do
not find any merit in the argument of learned
counsel for petitioner. Therefore, the prayers
of the writ petition are rejected.

11.

However,
considering
the
submission of petitioner that presently the
post of Gram Rojgar Sewak in concerned
Gram Panchayat is vacant, as the selected
candidate has joined some other service, in
such event the respondents are directed to
initiate fresh procedure for recruitment in
accordance with procedure prescribed and
petitioner is at liberty to participate and his
candidature shall also be considered on merit.

12. With the aforesaid observations, this
writ petition is finally disposed of.
----------
(2022) 8 ILRA 1058
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.08.2022

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ A No. 17257 of 2020

Eklavya Kumar ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Anwar Asfaq, Rina Pandey
Counsel for the Respondents:
C.S.C.

Civil
Service
Regulations,
1956
-
Section 351- A - U.P. Government
Servant (Discipline and Appeal) Rules,
1999 - Regulation 351- A empowers
 the State to recover from the pension,
but, it has to be categorically recorded
/ established that the act of the
delinquent
employee
has
caused
pecuniary loss to the State (Para 11)

Petitioner was awarded punishment of
deduction of 5% from his pension for period
of three years - impugned order assailed
on the ground that such punishment does
not find mention in the U.P. Government
Servant (Discipline and Appeal) Rules, 1999
or under Section 351- A of the Civil Service
Regulations - Held - In the present case,
there was no charge against the petitioner
to have caused pecuniary loss to the State -
It was also noticed that no date, time and
place was fixed by the inquiry officer -
deduction made from the pension of the
petitioner
is
liable
to
be
refunded,
alongwith interest at the rate of 6% from
the date of deduction till the amount is
refunded to the petitioner.(Para 12, 16)

Allowed. (E-5)

List of Cases cited:

1. Radhey Kant Khare Vs U.P. Co-operative
Sugar Mill, 2003 (1) AWC 704

2. Yog Narain Dubey Vs Managing Director &
ors.; Writ Petition No. 1756 (S/B) of 2006 dt
14.07.2011

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

1. Heard Sri Anwar Ashfaq, learned
counsel for the petitioner as well as learned
Standing Counsel for the respondents.

2. By means of present writ petition
the petitioner has assailed the order of