# Sanjay Kumar Singh v. Dir. Mahila Kalyan U.P. Lko. & Ors

- **Citation:** (2023) 9 ILRA 967
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-25
- **Case number:** Writ-A No. 2611 of 2003
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjay-kumar-singh-v-dir-mahila-kalyan-u-p-lko-ors-50814
- **Pages:** 7

## Headnote

Civil Law - Constitution of India, 1950 -
Article 226 - Reversion from Promoted
Post - Principles of Natural Justice -
Petitioner challenged the reversion order dated
24.04.2003, reverting him from Senior Clerk to
Junior Clerk, nearly a decade after his
promotion on 27.10.1994, without notice or
opportunity of hearing. Petitioner, appointed as
Junior Clerk in 1985 and promoted to Senior
Clerk, argued that reversion after such a long
period, without fault on his part, was illegal,
relying on P.N. Premachandran and Shekhar
968 INDIAN LAW REPORTS ALLAHABAD SERIES
Ghosh. Respondents contended the order was
valid to correct an incompetent authority's
action, citing U.O.I.Vs Raghuwar Pal Singh.
The court held that reversion after a
prolonged
period,
without
affording
an
opportunity of hearing, violated natural
justice principles, as established in Shekhar
Ghosh
and
P.N.
Premachandran.
The
impugned
order
was
passed
cursorily,
without
applying
judicial
mind,
and
respondents'
cited
cases
were
distinguishable.
Writ
petition
allowed,
reversion order quashed. (Paras 12-19)
Writ petition allowed.
List of Cases cited:

## Text

9 All. Sanjay Kumar Singh Vs. Dir. Mahila Kalyan U.P. Lko. & Ors.
967
Consequently, the conclusion of the learned
Trial Court to invoke Section 304 Part-II
I.P.C. cannot be said to be incorrect or
unjustified.

26. The submission of learned Amicus
Curiae raising the plea of self-defence is
totally misplaced inasmuch as the evidence
of P.W.-1 and P.W.-3 clearly established
that there took place a sudden action in the
heat of passion upon a sudden quarrel
inasmuch it was the deceased-Indal, who first
spoke to the accused-Mahipal that report of
harassment of his brother shall be made and he
shall set them right by breaking their bones
and it is thereafter, the scuffle took place and a
single blow of stabbing by knife was made by
the accused-Mahipal on the left thigh of the
deceased-Indal which is a non vital part of the
body. In his cross-examination, the P.W.-5
(doctor, who conducted the autopsy) has also
stated that if bleeding could have been stopped
by immediate surgical operation, then the life
of the deceased-Indal could have been saved.
This shows that Exception 4 of Section 300
IPC was invokable and the learned Trial Court
has rightly held the accused-Mahipal Singh
liable to be convicted and sentenced under
Section 304 Part-II read with Section 34 IPC.

27. For all the reasons aforestated, we
do not find any merit in the Government
Appeal No.213 of 1984 and also in
Criminal
Appeal
No.2419
of
1983.
Therefore, both the appeals are dismissed.

28. We record our appreciation for
Shri Rajiv Lochan Shukla, learned Amicus
Curiae for rendering valuable assistance to
the Court in deciding these old pending
appeals.

29. The bail bonds of the accusedMahipal Singh are hereby cancelled. The
accused-Mahipal Singh shall surrender
forthwith before the Court concerned. In
the event, he does not surrender, the Court
concerned shall take all appropriate steps
for his arrest, if the accused-Mahipal Singh
has not yet completed the sentence awarded
to him under the impugned judgement and
order. In the event, the accused-Mahipal
Singh has already completed the sentence
awarded to him under the impugned
judgement and order, then he shall not be
arrested unless wanted in any other case.

30. Let the record as well as copy of
the judgement be transmitted to the Trial
Court for information and compliance.
----------
(2023) 9 ILRA 967
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.08.2023

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ-A No. 2611 of 2003

Sanjay Kumar Singh ...Petitioner
Versus
Dir. Mahila Kalyan U.P. Lko. & Ors.
 ...Respondents

Counsel for the Petitioner:
P.K. Khare

Counsel for the Respondents:
C.S.C.

Civil Law - Constitution of India, 1950 -
Article 226 - Reversion from Promoted
Post - Principles of Natural Justice -
Petitioner challenged the reversion order dated
24.04.2003, reverting him from Senior Clerk to
Junior Clerk, nearly a decade after his
promotion on 27.10.1994, without notice or
opportunity of hearing. Petitioner, appointed as
Junior Clerk in 1985 and promoted to Senior
Clerk, argued that reversion after such a long
period, without fault on his part, was illegal,
relying on P.N. Premachandran and Shekhar
968 INDIAN LAW REPORTS ALLAHABAD SERIES
Ghosh. Respondents contended the order was
valid to correct an incompetent authority's
action, citing U.O.I.Vs Raghuwar Pal Singh.
The court held that reversion after a
prolonged
period,
without
affording
an
opportunity of hearing, violated natural
justice principles, as established in Shekhar
Ghosh
and
P.N.
Premachandran.
The
impugned
order
was
passed
cursorily,
without
applying
judicial
mind,
and
respondents'
cited
cases
were
distinguishable.
Writ
petition
allowed,
reversion order quashed. (Paras 12-19)
Writ petition allowed.
List of Cases cited:

1. P.N. Premachandran Vs St. of Kerala & ors.,
(2004) 1 SCC 245

2. Shekhar Ghosh Vs U.O.I.& anr., (2007) 1 SCC
331

3. St. of W.B. & ors. Vs Aghore Nath Dey & ors.,
(1993) 3 SCC 371

4. Board of Secondary Education of Assam
Vs Md. Sarifuz Zaman & ors., (2003) 12 SCC
408

5. U.O.I.& anr. Vs Raghuwar Pal Singh, (2018)
15 SCC 463

6. Santosh Kumar Verma & ors. Vs St. of Bihar
& ors., (1997) 2 SCC 713

7. Ram Ujarey Vs U.O.I., (1999) 1 SCC 685

8. Kenchava Kom Vs Girimallappa Channappa,
AIR 1924 PC 209

9. Vellikannu Vs R. Singaperuma, (2005) 6 SCC
222

(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Sri Sri Satyaveer Singh,
learned counsel for the petitioner and Sri
Rajesh Kumar Verma, learned Standing
Counsel for the State-respondent.

2. By means of the present writ
petition, the petitioner is challenging the
order
of
reversion
dated
24.4.2003,
contained as Annexure-1 to the writ
petition. It has been prayed to issue writ,
order or direction in the nature of
mandamus commanding the respondent
No.2 to correct the illegalities to the order
of Deputy Director, Faizabad Division
Faizabad and should pass the order
affecting from that date to which the
petitioner
has
automatically
become
entitled for promotion on the basis of
seniority.

3. Factual matrix of the case is that
the petitioner was appointed by the order of
Deputy
Director,
Faizabad
Division
Faizabad on the post of Junior Clerk
pursuant
to
the
result
of
selection
committee on 4.2.1985. On 27.10.1994, the
petitioner was promoted to the post of
Senior Clerk. He accordingly joined the
office of posting i.e. District Probation
Officer,
Gonda.
He
thereafter
was
transferred to the office of District
Probation Officer, Sultanpur, where he
joined as a Senior Clerk and discharged his
duties till date. He was granted increment
pursuant to the government order which is
applicable to the employee who continued
on a particular post for a period of eight
years.

4. By means of the impugned order
dated 24.4.2003, the petitioner, after almost
a decade, has been reverted to the post of
Junior Clerk, which was subject matter of
challenge in the present writ petition,
wherein this Court granted interim order
vide order dated 12.5.2003, operative
portion is quoted below :-

"Meanwhile, operation of the order
dated 24.4.2003 as contained in Annexure
9 All. Sanjay Kumar Singh Vs. Dir. Mahila Kalyan U.P. Lko. & Ors.
969
No.1 to the writ petition shall remain
stayed."

5. In pursuance to the interim order
granted by this Court, the petitioner
continued on the post of Senior Clerk till
date.

6. Assailing the impugned order,
submission of learned counsel for the
petitioner is that the employee who is not at
fault in getting the promotion, cannot be
penalised after a decade by passing the
impugned order of reversion. In support of
his submission, he placed reliance upon a
judgment
in
the
case
of
P.N.
Premachandran Vs. State of Kerala &
Others [(2004) 1 Supreme Court Cases
245].

7. Next submission is that the
petitioner was not afforded an opportunity
of hearing while passing the order of
reversion, reverting the petitioner on the
post of Junior Clerk. On the said point, he
placed reliance upon a judgment in the case
of Shekhar Ghosh Vs. Union of India &
Another [(2007) 1 Supreme Court Cases
331].

8. He further placed reliance upon a
judgment in the case of State of W.B. &
Others Vs. Aghore Nath Dey & Others
[(1993) 3 Supreme Court Cases 371] and
lastly, he placed reliance upon Board of
Secondary Education of Assam Vs. Md.
Sarifuz Zaman & Others [(2003) 12
Supreme Court Cases 408].

9. On the basis of submission
advanced, learned counsel for the petitioner
submits that the order passed by the
respondent is per se illegal and is not
sustainable in law and is liable to be set
aside by this Court.

10. On the other hand, learned
Standing Counsel submits that the order
impugned does not suffer from any
infirmity or illegality and is a just and valid
order. He submits that in case the order has
been passed by the incompetent authority,
the same can be rectified and corrected. He
placed reliance upon the following two
judgments :-

(i) Union of India and another Vs.
Raghuwar Pal Singh [(2018) 15 Supreme
Court Cases 463]

(ii) Santosh Kumar Verma and
others Vs. Stte of Bihar & others [(1997)
2 Supreme Court Cases 713]

11. I have considered the rival
contention of learned counsel for the
parties, perused the material on record as
well as the judgments relied upon by them.

12. On perusal of the record, it is
crystal clear that the impugned order has
been passed in a cursory manner after
passing a decade of the order of promotion.
It is also evident on perusal of the
impugned order that the same has been
passed without notice and opportunity of
hearing to the petitioner.

13. Learned counsel for the petitioner
has placed reliance upon a judgment in the
case of P.N. Premachandran (Supra).
Relevant paragraph 7 is quoted below :-

"7. It is not in dispute that the posts
were to be filled up by promotion. We fail to
understand how the appellant, keeping in
view the facts and circumstances of this
case, could question the retrospective
promotion
granted
to
the
private
respondents herein. It is not disputed that in
view of the administrative lapse, the
Departmental Promotion Committee did
970 INDIAN LAW REPORTS ALLAHABAD SERIES
not hold a sitting from 1964 to 1980. The
respondents cannot suffer owing to such
administrative lapse on the part of the State
of Kerala for no fault on their part. It is
also not disputed, that in ordinary course
they were entitled to be promoted to the
post of Assistant Directors, in the event, a
Departmental Promotion Committee had
been constituted in due time. In that view of
the matter, it must be held that the State of
Kerala took a conscious decision to the
effect that those who have been acting in a
higher post for a long time, although on a
temporary basis, but were qualified at the
time when they were so promoted and
found to be eligible by the Departmental
Promotion Committee at a later date,
should be promoted with retrospective
effect. "

14. He placed reliance upon Shekhar
Ghosh (Supra). Relevant paragraphs 17
and 19 are quoted below :-

"17.. It is not denied or disputed that
even when a mistake is sought to be
rectified, if by reason thereof, an employee
has to suffer civil consequences ordinarily
the principles of natural justice are
required to be complied with. It was so held
in Ram Ujarey v. Union of India [(1999) 1
SCC 685] in the following terms:-

"17. There is yet another infirmity in
the impugned order of reversion. The
appellant had been allowed the benefit of
service rendered by him as Coal Khalasi in
the Loco Department from 1964 to 1972 as
that period was counted towards his
seniority and it was on that basis that he
was called for the trade tests which the
appellant had passed and was, thereafter,
promoted to the posts of Semi-skilled Fitter
and Skilled Fitter. If the benefit of service
rendered by him from 1964 to 1972 was
intended to be withdrawn and promotion
orders were to be cancelled as having been
passed
on
account
of
mistake,
the
respondents ought to have first given an
opportunity of hearing to the appellant. The
appellant having earned two promotions
after having passed the trade tests, could
not have been legally reverted two steps
below and brought back to the post of
Khalasi without being informed that the
period of service rendered by him from
1964 to 1972 could not be counted towards
his seniority and, therefore, the promotion
orders would be cancelled. In a situation of
this nature, it was not open to the
respondents to have made up their mind
unilaterally on facts which could have been
shown by the appellant to be not correct
but this chance never came as the
appellant, at no stage, was informed of the
action which the respondents intended to
take against him."

19. If a mistake is to be rectified the
same should be done as expeditiously as
possible.
[See
Board
of
Secondary
Education, Assam v. Mohd. Sarjumma
(2003) 12 SCC 408]"

15. He also placed reliance upon
State of W.B. & Others (Supra). Relevant
paragraph 25 is being quoted as under :-

"25. In our opinion the conclusion (B)
was added to cover a different kind of
situation, wherein the appointments are
otherwise regular, except for the deficiency
of certain procedural requirements laid
down by the rules. This is clear from the
opening words of the conclusion (B),
namely, 'if the initial appointment is not
made by following the procedure laid down
by the rules' and the later expression 'till
the regularisation of his service in
accordance with the rules'. We read
conclusion (B), and it must be so read to recouncile with conclusion (A), to cover the
9 All. Sanjay Kumar Singh Vs. Dir. Mahila Kalyan U.P. Lko. & Ors.
971
cases where the initial appointment is made
against an existing vacancy, not limited to
a fixed period of time or purpose by the
appointment order itself, and is made
subject to the deficiency in the procedural
requirements prescribed by the rules for
adjudging suitability of the appointee for
the post being cured at the time of
regularisation, the appointee being eligible
and qualified in every manner for a regular
appointment
on
the
date
of
initial
appointment in such cases. Decision about
the
nature
of
the
appointment,
for
determining whether it falls in this
category, has to be made on the basis of the
terms of the initial appointment itself and
the provisions in the rules. In such cases,
the
deficiency
in
the
procedural
requirements laid down by the rules has to
be cured at the first available opportunity,
without any default of the employee, and
the appointee must continue in the post
uninterruptedly till the regularisation of his
service, in accordance with the rules. In
such cases, the appointee is not to blame
for the deficiency in the procedural
requirements under the rules at the time of
his
initial
appointment,
and
the
appointment not-being limited to a fixed
period of time is intended to be a regular
appointment, subject to the remaining
procedural requirements of the rules being
fulfilled at the earliest. In such cases also,
if there be any delay in curing the defects
on account of any fault of the appointee,
the appointee would not get the full benefit
of the earlier period on account of his
default, the benefit being confined only to
the period for which he is not to blame.
This category of cases is different from
those
covered
by
the
corollary
in
conclusion
(A)
which
relates
to
appointment only on ad hoc basis as a
stop-gap arrangement and not according to
rules. It is, therefore, not correct to say,
that the present cases can fall within the
ambit of conclusion (B), even though they
are squarely covered by the corollary in
conclusion (A)."

16. Lastly, he placed reliance upon
Board of Secondary Education of Assam
(Supra). relevant paragraphs 10 and 12 are
quoted below :-

"10. Nobody can claim a right to have
corrected an entry in a certificate solemnly
issued by an educational institution that too
the one enjoying the status of a statutory
Board under the Act. The right of the
applicant to have an error or mistake
corrected is accompanied by a duty or
obligation on the part of the Board to
correct its records and the certificate issued
by it. Not only it is a corresponding duty or
obligation, it has also to be perceived as a
power exercisable by the Board to correct
an entry appearing in the certificate issued
by it. People, institutions and government
departments etc.- all attach a very high
degree of reliability, near finality, to the
entries made in the certificates issued by
the Board. The frequent exercise of power
to correct entries in certificates and that
too without any limitation on exercise of
such power would render the power itself
arbitrary and may result in eroding the
credibility of certificates issued by the
Board. We therefore, find it difficult to
uphold the contention that the applicants
seeking correction of entries in such
certificates have any such right or vested
right.

12. Delay defeats discretion and loss
of limitation destroys the remedy itself.
Delay amounting to laches results in
benefit of discretionary power being denied
on principles of equity. Loss of limitation
resulting into depriving of the remedy, is a
principle based on public policy and utility
972 INDIAN LAW REPORTS ALLAHABAD SERIES
and not equity alone. There ought to be a
limit of time by which human affairs stand
settled and uncertainty is lost. Regulation 8
confers a right on the applicant and a
power coupled with an obligation on the
Board to make correction in the date of
birth subject to the ground of wrong
calculation or clerical error being made
out. A reasonable procedure has been
prescribed for processing the application
through Inspector of Schools who would
verify the school records and submit report
to the Board so as to exclude from
consideration the claims other than those
permissible within the framework of
Regulation 8. Power to pass order for
correction is vested on a higher functionary
like Secretary of the Board. An inaccuracy
creeping in at the stage of writing the
certificates only, though all other prior
documents are correct in all respects, is
capable of being. corrected within a period
of three years from the date of issuance of
certificate."

17. Learned Standing Counsel placed
reliance upon Union of India and another
(Supra). Relevant paragraph 19 is quoted as
under :-

"19. We shall now consider the efficacy
of the reason so recorded in the office order.
The recruitment procedure in relation to the
post of Veterinary Compounder is governed
by the statutory rules titled ?Central Cattle
Breeding Farms (Class III and Class IV
posts) Recruitment Rules, 1969, as amended
from time to time and including the executive
instructions issued in that behalf. As per the
stated dispensation for such recruitment, the
appointment letter could be issued only by an
authorised officer and after grant of approval
by the competent authority. Nowhere in the
Original Application filed by the respondent,
it has been asserted that such prior approval
is not the quintessence for issuing a letter of
appointment."

18. He also placed reliance upon a
judgment in the case of Santosh Kumar
Verma
and
others
(Supra).
Relevant
paragraph 5 is quoted below :-

"5. Section 6(3) of the Act only
empowers the Authority to appoint the
Secretary, and other officers and employees
of the Authority. The power under the proviso
is only a breathing elbow power given to the
Authority to make temporary appointments so
that the work of the Development Authority
goes on pending recruitment. Therefore,
when the advertisement was made for the
recruitment, it was obviously in furtherance
of the recruitment, it was obviously in
furtherance of the power flown under the
proviso for a limited period. Thereby, the
appointments obviously are only temporary
appointments had sought assistance of the
Government for regularisation which was
negatived by the Public Service Commission.
It is seen that these posts are within the
purview of the Public Service Commission.
Therefore, the Government sought the
concurrence
of
the
Public
Service
Commission
and
the
Public
Service
Commission had not concurred and, in our
view, correctly with the request made by the
Government. Therefore, any regularisation in
violation of the recruitment to be made by the
Public
Service
Commission
is
in
contravention of the law. The High Court
therefore, rightly did not issue any mandamus
for regularisation of the services made in
contravention of the Rules to violate and no
mandamus or direction would be issued to
violate law. "

19. It is well settled proposition of
law that the order of reversion can be
passed immediately after passing of the
9 All. M/S Aryan Group of Guard Services, Lko. Vs. U.O.I. & Ors.
973
order of promotion and in case the order
was permitted to continue for a long spell
of time, then the order should be passed
after affording an opportunity of hearing to
the parties. In the present case, the order of
reversion
has
been
passed
without
affording of opportunity of hearing to the
petitioner, therefore, the order is not
sustainable in law.

20. On perusal of the order, it is
well settled that the same has been
passed without applying the mind in
regard to law settled. the judgments
relied upon by learned counsel for the
petitioner are fully applicable to the
facts and circumstances of the present
case, whereas that of the learned
Standing
Counsel,
they
are
distinguishable in nature and are not
related to the facts and circumstances of
the present case.

21. In view of the reasons recorded
above, the writ petition succeeds and is
allowed. The
impugned
order
dated
24.4.2003
is
hereby
quashed.
Consequences to follow.
----------
(2023) 9 ILRA 973
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.08.2023

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-C No. 6418 of 2023

M/S Aryan Group of Guard Services, Lko.
 ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
D.P. Dutt Tiwari, Chandra Mohan
Counsel for the Respondents:
A.S.G.I., Shishir Pradhan

Civil Law - Employees' St. Insurance Act,
1948 - Sections 44, 45, 45A, 45AA, 45C &
45E - Recovery of Contributions - Validity
of Recovery Order - Petitioner challenged
recovery order dated 17.01.2020 issued by
respondent No. 2 under Sections 45-C to 45-I,
seeking recovery of Rs.67,33,238/- as unpaid
contributions and interest for November 2018 to
July 2019, alleging it was issued without
determination under Section 45A. Respondents
argued
that
petitioner's
self-declared
contributions on ESIC portal (C-6 compliance
register) justified direct recovery, as the amount
was known. Court held that under the Act's
scheme, employers must file returns under
Section 44, which are scrutinized under Section
45 by Social Security Officers. Determination of
contributions under Section 45A is mandatory,
even if returns are filed, before initiating
recovery under Sections 45C to 45I. Absence of
a
Section
45A
order
renders
recovery
proceedings
illegal,
as
employers
cannot
challenge recovery amounts under Section 45E,
but can appeal a Section 45A determination
under Section 45AA. No determination under
Section 45A was made, making the recovery
order arbitrary and contrary to law. Order dated
17.01.2020 quashed, with liberty to respondents
to pass fresh orders under Section 45A. (Paras
7-9, 12-16)

Writ petition allowed.

List of Cases Cited:
Hem Kumar Gogoi Vs Employees' St.Insurance
Corporation & ors., (2016) 09 Gau CK 0004

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

1. Heard Sri D.P. Dutt Tiwari, learned
counsel for the petitioner as well as Sri
Shishir Pradhan for respondent No.s 2 and 3.

2. The counter affidavit filed on
behalf of respondent Nos. 2 and 3 is taken
on record.