# S.C. 494 and A.A. Mulla and others v. State of Maharashtra and another

- **Citation:** (2005) 4 ILRA 1140
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-11-22
- **Case number:** Civil Misc. Writ Petition No. 23237 of 2004
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/s-c-494-and-a-a-mulla-and-others-v-state-of-maharashtra-and-another-40562
- **Pages:** 5

## Headnote

Constitution of India, Art. 226-Right to
promotion-petitioner
qualified
departmental examination for Junior
Accounts Officer-send for training-during
4 All] Dilip Kumar Singh V. Bharat Sanchar Nigam Ltd. and others
1141
mid-term of-called back-in view of the
facts C.B.I. case is pending against
petitioner-during investigation house of
petitioner was searched but nothing
incriminating found-No charge sheet
issued-held-entitled
to
complete
the
training by forthwith and be promoted
on the post in question-subject to final
out come of criminal investigation by
C.B.I.

Held: Para 13 and 14

It is evident that in so far as other
suspended employees in the matter are
concerned the C.B.I. has issued charge
sheet to them, but no charge sheet has
been issued to the petitioner by the
C.B.I. His house was searched out and
nothing incriminating has been found.
From the letter dated 28.7.2004 it is
apparent that the C.B.I. is of the view
that the question of promotion of the
petitioner is an internal matter of the
Department. From the record it is also
evident that the petitioner had been sent
for training and was called back in the
midst of training. It is further evident
that other candidates along with the
petitioner
who
had
passed
the
examination have been sent for training.
The career of the petitioner is being
jeopardized only because he is not being
sent for training due to the alleged
investigation
in
which
neither
incriminating articles have been found
till date nor any charge sheet has been
issued to the petitioner.

For the reasons stated above, the writ
petition is disposed of with the direction
to the respondents to send the petitioner
for training forthwith. However, the
enquiry pending against the petitioner
may go on. The petitioner may be
promoted to the post of Junior Accounts
Officer which shall be subject to the
finalization
of
the
crimination
investigation by the C.B.I.

## Text

1140 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
is so there is no occasion for interference
in this appeal. It is accordingly dismissed.

5. Similar view has been voiced by
the Apex Court in the case of State of
U.P. Vs. Kapil Deo Shukla, A.I.R. 1973
S.C. 494 and A.A. Mulla and others Vs.
State of Maharashtra and another,
1997 J.I.C. 212 (S.C.). In the said cases
reliance was placed on a number of
decisions of the Apex Court. A perusal of
the entire paper book shows that the
identical allegations were levelled against
the applicants four days prior to the
lodging of the instant complaint. The
application before the Additional District
Magistrate dated 26.3.1990, Annexure-6
to the affidavit, it is only narration which
has been given out in the instant
complaint which is Annexure-1 to the
affidavit. It is thus evident that repeated
allegations
at
the
instance
of
the
complainant is nothing short of an abuse
of the process of the court, specially when
the complainant has only narrated his
apprehensions on the basis of the so
called threat said to have been extended
by the applicants, such a long period has
gone by and nothing has come out,
therefore, mere threat to cause the injury
to his person and property is sheer
imagination of the complainant. It is not a
case where serious criminal offences are
alleged
in
the
complaint
and
the
applicants have been kept on waiting for
the outcome of the complainant, specially
the summoning order has been passed
after lapse of 8 years which can not be
overlooked by this Court. It is not a case
where inherent powers have been invoked
immediately
after
lodging
of
the
complaint but they have been summoned
after a considerable long span of eight
years.

6. A bare reading of the complaint in
the present case makes it clear that only
certain
apprehensions
against
the
applicants have been voiced by the
complainant for the reason that his son
and daughter-in-law had left his house
and started living separately. After lapse
of 15 years nothing has happened in
between
and
it
is
apparent
that
continuation of the criminal proceedings
on the basis of impugned complaint will
only amount to an abuse of the process of
the court and therefore, I therefore quash
the complaint which is registered as
Complaint Case No. 1007 of 1990-V.K.
Taneja Vs. Deena Nath Arora and others,
pending in the court of Chief Judicial
Magistrate, Bareilly. This application is
accordingly allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.11.2005

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 23237 of 2004

Dilip Kumar Singh

...Petitioner
Versus
Bharat Sanchar Nigam Ltd. and others

 ...Respondents

Counsel for the Petitioner:
Sri S.K. Chaubey
Sri R.K.S. Chauhan

Counsel for the Respondents:
Sri B.N. Singh
Sri G.S. Hajela
S.S.C.

Constitution of India, Art. 226-Right to
promotion-petitioner
qualified
departmental examination for Junior
Accounts Officer-send for training-during
4 All] Dilip Kumar Singh V. Bharat Sanchar Nigam Ltd. and others
1141
mid-term of-called back-in view of the
facts C.B.I. case is pending against
petitioner-during investigation house of
petitioner was searched but nothing
incriminating found-No charge sheet
issued-held-entitled
to
complete
the
training by forthwith and be promoted
on the post in question-subject to final
out come of criminal investigation by
C.B.I.

Held: Para 13 and 14

It is evident that in so far as other
suspended employees in the matter are
concerned the C.B.I. has issued charge
sheet to them, but no charge sheet has
been issued to the petitioner by the
C.B.I. His house was searched out and
nothing incriminating has been found.
From the letter dated 28.7.2004 it is
apparent that the C.B.I. is of the view
that the question of promotion of the
petitioner is an internal matter of the
Department. From the record it is also
evident that the petitioner had been sent
for training and was called back in the
midst of training. It is further evident
that other candidates along with the
petitioner
who
had
passed
the
examination have been sent for training.
The career of the petitioner is being
jeopardized only because he is not being
sent for training due to the alleged
investigation
in
which
neither
incriminating articles have been found
till date nor any charge sheet has been
issued to the petitioner.

For the reasons stated above, the writ
petition is disposed of with the direction
to the respondents to send the petitioner
for training forthwith. However, the
enquiry pending against the petitioner
may go on. The petitioner may be
promoted to the post of Junior Accounts
Officer which shall be subject to the
finalization
of
the
crimination
investigation by the C.B.I.

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard learned counsel for the
petitioner
and
Sri
B.N.Singh
for
respondents 1 to 3. Sri G.S.Hajela for the
respondent no. 4 is not present.

2. By means of this writ petition, the
petitioner has sought for a writ of
mandamus directing the respondents to
send him for training for the post of
Junior Accounts Officer along with other
successful candidates and permit him to
join on the promotional post of Junior
Accounts Officer.

3. Brief facts of the case are that
after completion of requisite training, the
petitioner
is
working
as
a
Senior
Telephone
Operating
Assistant
(P)
G.M.T.D., Allahabad. The examination
for the promotional post of Junior
Accounts Officer Part I was held by the
Department in October 2002 in which the
petitioner was declared successful. The
petitioner also passed the examination of
Junior Accounts Officer Part II in the year
2003 and the candidates who had
appeared along with him were sent for
training
but
the
petitioner
was
discriminated and was not sent for
training till date. In these circumstances,
the petitioner has filed this writ petition.
After qualifying in the examinations of
Junior Accounts Officer Part I and II, the
petitioner
made
a
representation/application
to
the
respondents dated 18.9.2003 to relieve
him for training for the post of Junior
Accounts Officer, but the application
remained
unactioned.
Thereafter
the
petitioner
made
successive
representations
dated
23.10.2003,
1.12.2003, 5.4.2004 and 10.6.2004, which
also met with the same fate.
1142 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
4. It appears from record that the
petitioner was suspended vide order dated
17.5.2001
on
the
charges
of
embezzlement which were brought to the
notice of the Department and were under
investigation of the C.B.I. The order of
suspension was subsequently revoked on
21.8.2001. It also appears that during the
pendency of investigation, a search
warrant was issued and a search of the
premises of the petitioner was made in
which nothing incriminating was found.
The report dated 6.6.2002 regarding the
search is appended as Annexure 9 to the
writ petition.

5. In response to the query of the
Assistant
General
Manager
of
the
Department as to whether any vigilance
enquiry
was
pending
against
the
petitioner, he was informed vide letter
dated 11.9.2003 contained in Annexure
10 to the writ petition that no vigilance
enquiry is pending against the petitioner.
The contents of the said letter dated
11.9.2003 are as under:-

"Preshak,
Up. Man. Abhi. M.B.F.E.

Sewa Men,
Sahayak Mahaprabandhak (Prashasan)
Ka Neej 9.52 Sanchar Alld.

Patrank
San.
Es.Dee.Dee./Em.Dee.
Ef.Dee. 100 A Allahabad Dinank 11.9.03

Visay:- Sri Dileep Kumar Singh C.T.O.A.
(P) ke satarkta ka anushasnatmak mamle
ke sambandh me.

Mahaprabandhak
Door
Sanchar
Allahabad
ke
patrank
E.9/J.A.O./Training/G.M.T.D./27 Dinank
11.9.03 ke anupalan men soochit kiya jata
hai ki Sri Dileep Kumar Singh C.T.O.A.
(P) ke viruddha satarkta sambandhi koi
mamla vicharadhin ya lambit nahin hai.

Sd/- illegible
(Seal)
Up Mandal Abhiyanta M.B.F.E 10 O.
Doorbhas Kendra Civil Lines, Allahabad
211001"

Note: (The original letter is in Devnagri
script which is given hereinabove in
Roman script due to technical reason).

6. A short counter-affidavit and two
supplementary
counter-affidavits
have
been
filed
on
behalf
of
TeleCommunication
Department,
Bharat
Sanchar Nigam Ltd. The learned counsel
for the respondents has placed reliance on
paragraphs 6 and 7 of the short counteraffidavit wherein it has been averred that
the Divisional Engineer (A & P), Office
of
Telecom
District
Manager,
Shahjahanpur
vide
his
letter
dated
20.3.2003 informed that investigation by
the C.B.I. is going on against the
petitioner for making fake figures in the
computer which facilitated huge public
money to be embezzled by certain
officials of the Telecom District Manager,
Shahjahanpur. It is also stated therein that
as the investigation against the petitioner
is pending he could not be relieved for
training of Junior Accounts Officer Part
II. It is further averred that the matter was
referred to the Circle Officer, Lucknow
but no orders have been issued by the
Chief General Manager U.P., East Circle,
Lucknow to relieve the petitioner for
training in view of the investigation by
the C.B.I.

7. In the supplementary counteraffidavit filed on behalf of respondent
4 All] Dilip Kumar Singh V. Bharat Sanchar Nigam Ltd. and others
1143
nos. 1 to 3 filed along with application no.
236733 of 2004, it has been averred that
the petitioner was sent for training of
Junior Accounts Officer due to oversight
but he failed in the second attempt also
and was returned back and that the
criminal investigation by the C.B.I. is still
under investigation and the petitioner has
not been given clean chit by the C.B.I. till
date, as such he cannot be sent for
training as is evident from copy of the
letter dated 28.7.2004 which has been
appended as Annexure C.A. 1. A perusal
of the letter dated 28.7.2004 shows that
the C.B.I. is of the view that the
promotion of the petitioner during the
pendency of the investigation by C.B.I. is
an internal matter of the Department and
the Department has been advised to take
action within the provisions of the
relevant departmental rules and vigilance
manual in the matter in this regard.

8. In the second supplementary
counter-affidavit
filed
along
with
application no 26659 of 2004 the same
facts are reiterated as in the short counteraffidavit.

9. The learned counsel for the
respondents submits that the contention of
the learned counsel for the petitioner that
C.B.I. has submitted its report in respect
of investigation is not correct. Unless and
until report is submitted by the C.B.I. and
is accepted by the Magistrate and the
petitioner is exonerated of the charge, he
cannot be sent for training and as such the
prayer of the petitioner for an interim
order to send him for training during the
pendency of the writ petition is liable to
be rejected.

10. In rebuttal, the petitioner replied
the averments in supplementary rejoinderaffidavit. In paragraph 6 it has been
averred that the charge sheet has been
issued against the delinquent employees
of T.D.M. Office, Shahjahanpur by the
C.B.I. but no charges have been framed
against the petitioner, as such there is no
justification for denying promotion to him
even after qualifying the departmental
examination of Junior Accounts Officer
Parts I and II.

11. In the counter-affidavit filed on
behalf
of
respondent
no.
4,
Superintendent of Police, Central Bureau
of
Investigation,
Lucknow
only
paragraphs 10 and 12 of the writ petition
have been replied to in paragraph 4 of the
counter-affidavit as under:-
"4. That the contents of the para 10
and 12 denied. It is submitted that against
the petitioner Dilip Kumar Sigh a case has
been registered by the CBI at its Branch at
Lucknow and case registered at RC No.
2(A) 2002 under Sections 120B/409 IPC
and 13(2) R/W Section 13(1) (d)
Prevention of Corruption Act 1988. This
case was registered on 17.1.2002 and
accused D.K.Singh is named accused in
that FIR. Even a house search was
conducted at the house of the petitioner
Dilip Kumar Singh on 6.6.2002 in the
presence of independent witnesses. At
present
in
the
above
noted
case
investigation is still going on."

12. In reply to rest of the paragraphs,
i.e., 1 to 8 and 11 to 18 it is stated that
they need no reply or no comments.

13. It is evident that in so far as
other suspended employees in the matter
are concerned the C.B.I. has issued charge
sheet to them, but no charge sheet has
been issued to the petitioner by the
C.B.I. His house was searched out and
1144 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
nothing incriminating has been found.
From the letter dated 28.7.2004 it is
apparent that the C.B.I. is of the view
that the question of promotion of the
petitioner is an internal matter of the
Department. From the record it is also
evident that the petitioner had been sent
for training and was called back in the
midst of training. It is further evident that
other candidates along with the petitioner
who had passed the examination have
been sent for training. The career of the
petitioner is being jeopardized only
because he is not being sent for training
due to the alleged investigation in which
neither incriminating articles have been
found till date nor any charge sheet has
been issued to the petitioner.

14. For the reasons stated above, the
writ petition is disposed of with the
direction to the respondents to send the
petitioner for training forthwith. However,
the enquiry pending against the petitioner
may go on. The petitioner may be
promoted to the post of Junior Accounts
Officer which shall be subject to the
finalization
of
the
crimination
investigation by the C.B.I.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.11.2005

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No. 25034 of 1988

Diptee Singh

...Petitioner
Versus
IInd Additional District Judge, Mainpuri
and others

 ...Respondents

Counsel for the Petitioner:
Sri Swaraj Prakash

Counsel for the Respondents:
Sri Ravi Kant
Sri R.P. Dubey
Sri S.R. Pandey
S.C.

U.P. Urban Building (Regulation of Rent
and Eviction) Act 1972-S-21(I) bonafied
need-Release
application-residential
accommodation
on
the
ground
of
personal need-during pendency of the
proceeding-Land lord got constructed
another house in the same city and
shifted
there-held-subsequent
event
have to be taken into consideration.

Held: Para 10 and 11

However there does not appear to be any
divergence of opinion on the question of
consideration of subsequent event of
acquisition of property by the landlord.
In the following authorities of the
Supreme Court, it has been held that if
after passing of the release order by the
courts below and during pendency of the
appeal/ revision or writ petition landlord
acquires another accommodation which
completely satisfies his need then this
fact / subsequent event will have to be
taken into consideration and release
order will have to be set-aside on this
ground

Accordingly I hold that acquisition of the
house by the landlord during pendency
of the writ petition and shifting of his
residence
to
the
acquired
house
completely eclipsed his need. This fact is
so important that it can not be ignored
and it will have to be taken into
consideration. Amendment application is
therefore allowed. Due to acquisition of
another house need of the landlord
stands completely satisfied and the
need, which he had has vanished.
Case law discussed:
AIR 2003 SC-2713
AIR 2004 SC-3484
2004 (2) ARC 764
AIR 1997 SC-2399
AIR 2001 SC 803