# Sanjay Mohan v. State of U.P. and others

- **Citation:** (2008) 1 ILRA 143
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-11-12
- **Case number:** Civil Misc. Writ Petition No. 34209 of 2005
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjay-mohan-v-state-of-u-p-and-others-41250
- **Pages:** 5

## Headnote

Rules
1954-Rule
5,12
and
13Recruitment on the Post of Head Munshipetitioner initially appointed on the Post
of Sinchpal in 1979-promoted on the
post of Munshi on 27.11.98, confirmed
on
29.10.04-further
promoted
on
15.11.04 as Head Munshi-cancellation on
the ground not having 10 years working
experience as Munshi-held-illegal-on the
date of promotion petitioner posses
more
than
10
years
experienceparticularly the private respondent being
appointed as Mate in 1997 can not be
promoted as head Munshi-legal aspect
clarified.

Held: Para 11

Learned counsel for the respondent No. 5
submits that the promotion of the
petitioner as head Munshi has rightly
been cancelled as he was not qualified
for such a promotion as under Rule 12 of
the Rules, 1954.he has not put in at least
10 years continuous service on the post
of Murshi I am not at all impressed by
the above submission. A plain reading of
Rule 12 and 13 indicates that for the
promotion on the post of Munshi the
Patrol or Tube-well Operator as the case
may be apart from being in the required
age group should have least 5 years of
continuous service and should be willing
to work as Munshi. As far as for the
appointment on the post of head Munshi
by promotion, the necessary eligibility
conditions
are
that
the
candidates
144 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
should be confirmed Munshi with at least
"10 years continuous service". The said
rule no where stipulates in specific terms
that 10 years of continuous service
should be on the post of Munshi.
Therefore,
in
the
absence
of
such
specification "10 years of continuous
service"
refers
to
service
in
the
department whether it happens to be on
the post of Munshi or any other inferior
post. The petitioner is working in the
department since 16.10.1979 and as
such on the date of his promotion as
head Munshi he had put in over 10 years
service in the department. Since the
petitioner has admittedly, put in over 10
years service and was working as a
confirmed Munshi, on .the date of his
promotion as head Munshi, it can not be
said that he was not qualified or eligible
to be promoted.

## Text

1 All] Sanjay Mohan V. State of U.P. and others
143
Bench which is affirmed by the Apex
Court: such a direction or order would be
in violation of the Rules of Court and,
therefore, nullity. Any case at pre
admission stage cannot be treated as part
heard or tied up and such a direction
contrary to the roster is not within the
competence of the any Single or Division
Bench of the High Court as has also been
held in the case of Jasbir Singh (supra).

18. In these circumstances, we
accept both the submissions of the
appellant, namely, the petition had
become infructuous once the daughter of
the original petitioner had appeared at the
examination from the centre that was
allotted to her and secondly, the orders
passed by the learned Single Judge after
change of roster were without jurisdiction
and are liable to be treated as null and
void.

19. In these circumstances, we allow
this appeal and set aside the orders dated
12.3.2007, 23.3.2007, 6.4.2007, 4.5.2007,
2.7.2007,
9.8.2007,
17.9.2007
and
12.10.2007 passed by the learned Single
Judge and the petition is also disposed of
as worked out. The registry will make
necessary entry.

20. In the circumstances of the case,
obviously there will not be any order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.11.2007

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 34209 of 2005

Markandey Maurya

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

Counsel for the Petitioner:
Sri P.C. Sritvastava

Counsel for the Respondents:
Sri V.S. Shukla
Sri A.K. Bajpai
S.C.

Irrigation Department Munshi Service
Rules
1954-Rule
5,12
and
13Recruitment on the Post of Head Munshipetitioner initially appointed on the Post
of Sinchpal in 1979-promoted on the
post of Munshi on 27.11.98, confirmed
on
29.10.04-further
promoted
on
15.11.04 as Head Munshi-cancellation on
the ground not having 10 years working
experience as Munshi-held-illegal-on the
date of promotion petitioner posses
more
than
10
years
experienceparticularly the private respondent being
appointed as Mate in 1997 can not be
promoted as head Munshi-legal aspect
clarified.

Held: Para 11

Learned counsel for the respondent No. 5
submits that the promotion of the
petitioner as head Munshi has rightly
been cancelled as he was not qualified
for such a promotion as under Rule 12 of
the Rules, 1954.he has not put in at least
10 years continuous service on the post
of Murshi I am not at all impressed by
the above submission. A plain reading of
Rule 12 and 13 indicates that for the
promotion on the post of Munshi the
Patrol or Tube-well Operator as the case
may be apart from being in the required
age group should have least 5 years of
continuous service and should be willing
to work as Munshi. As far as for the
appointment on the post of head Munshi
by promotion, the necessary eligibility
conditions
are
that
the
candidates
144 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
should be confirmed Munshi with at least
"10 years continuous service". The said
rule no where stipulates in specific terms
that 10 years of continuous service
should be on the post of Munshi.
Therefore,
in
the
absence
of
such
specification "10 years of continuous
service"
refers
to
service
in
the
department whether it happens to be on
the post of Munshi or any other inferior
post. The petitioner is working in the
department since 16.10.1979 and as
such on the date of his promotion as
head Munshi he had put in over 10 years
service in the department. Since the
petitioner has admittedly, put in over 10
years service and was working as a
confirmed Munshi, on .the date of his
promotion as head Munshi, it can not be
said that he was not qualified or eligible
to be promoted.

(Delivered by Hon'ble Pankaj Mithal. J.)

1. Heard learned counsel for the
parties and the Standing counsel.

2. The petitioner has challenged the
order dated 15.4.2005 (Annexure 8 to the
writ petition) by which the promotion
granted to him on the post of head munshi
has been cancelled, order dated 15.4.2005
(Annexure·9 to the writ petition) by which
the respondent No.5 has been promoted in
his place as head munshi and the order
dated 20.11.1998 (Annexure 2 to the writ
petition) promoting the petitioner on the
post of munshi. The challenge to the third
order has been made after the application
of the petitioner for amending the writ
petition was allowed by the Court vide
order dated 28.8.2006.

3.

Learned
counsel
for
the
respondent No. 5 has tried to raise a
preliminary objection that the petitioner
can not be permitted in this writ petition
which has been filed in the year 2005 to
challenge the order dated 20.11.1998. The
aforesaid objection in substance seeks to
question the order of the Court allowing
the amendment application permitting the
petitioner to challenge the aforesaid order.
However, the petitioner has not applied
for the recall of the order dated
20.11.1998 allowing the amendment and
the correctness of the said order can not
be gone into by me as I am not sitting in
appeal over the said order. Accordingly,
the objection as raised by the learned
counsel for the petitioner is rejected.

Now upon the merits.

4. The petitioner was appointed on
the post of Seenchpal also known as
patrol
employee
in
the
irrigation
department on 16.10.1979. He was
promoted to the post of Munshi vide order
dated
27.11.1998
with
effect
from
20.11.1998. The petitioner was confirmed
as Munshi on 29.10.2004 with effect from
1.4.2003. Finally, the petitioner was
promoted to the post of Head Munshi vide
order dated 15.11.2004. However, the
said order has been cancelled vide the
impugned order dated 15.4.2005 passed
by the Superintendent Engineer.

5. On the other hand respondent No.
5 who was appointed initially as Meth
was promoted as Munshi vide order dated
20.11.1998 and finally as head Munshi by
the order dated 15.1.2005 after the
promotion of the petitioner was cancelled.

6. Learned counsel for the petitioner
contends
that
under
the
Irrigation
Department Munshis Service Rules, 1954
which govern their services, there is no
channel of promotion from the post of
Meth to that of the Munshi and therefore,
the order dated 20.11.1998 promoting the
1 All] Markandey Maurya V. State of U.P. and others
145
respondent No. 5 as Munshi is wholly
illegal and since the petitioner can not be
promoted as Munshi he is also not entitle
to be promoted and appointed as head
Munshi.
In order to appreciate the above
submission, it is proper to extract the
relevant Rules 5,12 and 13 of the Rules,
1954.

"Sources
of
Recruitment-
(I)
Recruitment to the Service shall be made
as follows:-

(a) Head Munshis...By promotion from
amongst confirmed Munshis employed in
Executive Engineer's Offices in a circle.
(b) Munshis...(i) By promotion from
amongst Patrols employed in Canal
Divisions
and
Tube-well
Operators
employed in Tube-well Division, and
(ii) By direct recruitment, if suitable
Patrols and Tube-well Operators are not
available.
(2) .........................
12. Procedure for recruitment to he post
of Head Munshi- (a) each Executive
Engineer shall make preliminary selection
from amongst all the confirmed Munshis
in his division, who have put in at least
ten year's continuous service (including
the period of officiating or temporary
service) and who are eligible under rule 8
(b), and send on June 1, every year the
names of his nominees along with their
character rolls and personal files, if any,
to the Superintending Engineer. If any
senior Munshi eligible for promotion
under the Rules is left out in the
recommendation
of
an
Executive
Engineer, he shall explain the reasons for
such
omission
while
sending
his
nominations
to
the
Superintending
Engineer. He shall also send to the
Superintending Engineer the character
rolls and personal files, if any, of such
persons.
(b) .....................
(c) .....................
13. Procedure for recruitment to the
posts of Munshi by promotion- (a)
Recruitment to the posts of Munshis
under Rule 5 (I) (b) (i) shall be made
strictly on merit by the Committee from
amongst confirmed Patrols in the Canal
Divisions and the confirmed Tube-well
Operators in the Tube-well Divisions as
the case may be-
(i) who are eligible under rule 8(b).
(ii) who have put in at least five year's
continuous service (including period of
officiating or temporary service), and
(iii) who, are willing to work as Munshi.

(b) The Committee shall arrange the
names of the selected candidates in order
of preference the number in the list being
a little larger than the number of
vacancies be filled by promotion.
A plain reading of Rule 5 along with
Rule 13 indicates that there are two
sources of making appointment on the
post of Munshis i.e.
(i) By promotion from amongst Patrols
employed in Canal Divisions and Tubewell
Operators
employed
Tube-well
Division; and
(ii) By direct recruitment, if suitable
Patrols and Tube-well Operators are not
available.

7. It· also provides that for filling the
post of Munshis recruitment shall be
made strictly on merit from amongst the
confirmed Patrols in the Canal Divisions
and the confirmed Tube-well Operators of
Tube-well Divisions as the case may be
provided they are employed and have put
in 5 years as continuous service and are
willing to work as Munshis. Apart from
146 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
the above, there is no other mode of
recruitment of the Munshis. Therefore,
there is no channel of promotion from the
post of Meth to the post of Munshi.
Admittedly, the post of Meth is different
to that of a Patrol employee.

8. In view of the above, I am of the
opinion that the appointment of the
respondent No. 5 by promotion as Munshi
from the post of Meth was de-hors the
rules and is liable to be set aside.

9. Since the appointment of the
respondent No.5 as Munshi is de-hors the
rules, he is not entitle to be promoted as
head Munshi. Accordingly the order dated
15.4.2005 promoting him as head Munshi
also falls to the ground.

10. Now let me examine the validity
of the promotion of the petitioner as Head
Munshi.

11. Learned counsel for the
respondent No. 5 submits that the
promotion of the petitioner as head
Munshi has rightly been cancelled as he
was not qualified for such a promotion as
under Rule 12 of the Rules, 1954.he has
not put in at least 10 years continuous
service on the post of Murshi I am not at
all impressed by the above submission. A
plain reading of Rule 12 and 13 indicates
that for the promotion on the post of
Munshi the Patrol or Tube-well Operator
as the case may be apart from being in the
required age group should have least 5
years of continuous service and should be
willing to work as Munshi. As far as for
the appointment on the post of head
Munshi by promotion, the necessary
eligibility
conditions
are
that
the
candidates should be confirmed Munshi
with at least "10 years continuous
service". The said rule no where stipulates
in specific terms that 10 years of
continuous service should be on the post
of Munshi. Therefore, in the absence of
such specification "10 years of continuous
service"
refers
to
service
in
the
department whether it happens to be on
the post of Munshi or any other inferior
post. The petitioner is working in the
department since 16.10.1979 and as such
on the date of his promotion as head
Munshi he had put in over 10 years
service in the department. Since the
petitioner has admittedly, put in over 10
years service and was working as a
confirmed Munshi, on .the date of his
promotion as head Munshi, it can not be
said that he was not qualified or eligible
to be promoted.

12. No other illegality in the
promotion of the petitioner as head
Munshi has been pointed out which could
have instigated the cancellation of the
promotion of the petitioner. Accordingly,
the impugned order dated 15.4.2005
passed by the Superintending Engineer
cancelling the promotion granted in
favour of the petitioner is liable to be
quashed.

13. In view of the aforesaid facts
and circumstances, the writ petition
succeeds and is allowed. The impugned
orders dated 20.11.1998 (Annexure-2 to
the writ petition), 15.4.2005 (Annexure-9
writ petition) promoting the respondent
No.5 .as Munshi and as head Munshi
respectively
and
the
order
dated
15.4.2005
(Annexure-8
to
the
writ
petition) cancelling the promotion of the
petitioner as head Munshi are quashed.

14. No order is passed as to costs.
---------
1 All] Markandey Maurya V. State of U.P. and others
147

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.12.2007

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE R.N. MISHRA, J.

First Appeal From Order No. 3133 of 2007

Santosh Kumar alias Tata

...Plaintiff-appellant
Versus
Smt. Meena Devi ...Defendant-Respondent

Counsel for the Appellant:
Sri. V. Singh
Sri. J.S. Pandey
Sri. Phaujdar Rai
Sri. Ranjay Kumar

Counsel for the Opposite Party:
Sri. Pradeep Kumar Rai

Code of Civil Procedure-Section 151
readwith Order 31 rule 1 and 2-Grant of
injunction in favour of defendant-the
order
passed
by
the
Trial
Courtchallenged beyond the ambit of the
provision of the order 39 rule 1-heldTrial Court rightly exercised its power
under section 151 C.P.C. warrant no
interference

Held: Para 5 & 6

This plea is not acceptable that relief for
injunction cannot be granted in favour of
defendant because no court fee has been
paid by her on the basis of principle of
avoiding multiplicity of proceedings. In
that
case,
the
tenant
had
sought
permission against landlord to carry out
only repair in order to make premises
habitable and the injunction was granted
against the landlord because by granting
injunction, he was not likely to suffer at
all.

In view of our above discussions, we
come to the conclusion that while
passing the impugned order, the learned
trial court has acted strictly on the basis
of principles of law and the impugned
order needs no interference in appeal
and
consequently,
the
appeal
is
summarily dismissed
Case law discussed:
2000(91) RD 615, 1972, 1972 ALJ 379, AIR
1989 Alld 164

(Delivered by Hon'ble V.M. Sahai, J.)

1. This appeal has been preferred by
the plaintiff-appellant Santosh Kumar
alias Tata against the order dated
12.10.2007, passed by Sri Bachchu Singh,
Civil Judge (Senior Division), Ballia in
O.S. No. 276 of 2004, by which adinterim injunction 6C-2 moved by the
plaintiff-appellant has been rejected but
the application 60C-2, moved by the
defendant-respondent Smt. Meena Devi
for the same purpose has been allowed
and the plaintiff-appellant has been
restrained till the pendency of the suit
from interfering in any way with the title
and possession of defendant-respondent in
the property in dispute.

2. We have heard Sri Phaujdar Ral
and Sri V. Singh, learned counsel for the
plaintiff-appellant and Sri Pradeep Kumar
Rai, learned counsel for the respondent.

3. The plaintiff-appellant filed a suit
for injunction on the basis of a Will dated
6.3.2003, alleged to have been executed
by
Shambhoo
Prasad,
husband
of
defendant-respondent regarding his two
immovable properties detailed in the Will,
the copy of which is Annexure-3. These
properties are the houses, one situated in
District Ballia of Uttar Pradesh and