# Santosh Kumar Agnihotri and others v. State of U.P

- **Citation:** (2010) 3 ILRA 918
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-08-20
- **Case number:** Special Appeal No. 585 of 2010
- **Bench:** F.I.Rebello, C.J. Shri Narayan Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/santosh-kumar-agnihotri-and-others-v-state-of-u-p-41822
- **Pages:** 4

## Headnote

Constitution
of
India
Art.226appointment
of
B.R.C.
And
ABRC-
3 All] Santosh Kumar Agnihotri and others V. State of U.P.
919
petitioner have already worked as
coordinator
and
Block
Resource
Centre-without right of Renewal after
completing two years tenure-ear liar
Scheme abolished-new Scheme under
Sarva
Shiksha
Abhiyan
can
apply
without
claiming
any
preferential
right-misconceived-appellant can not
claim regular appointment but after
expiry of period of two years- eligible
for further consideration-Order passed
by Single judge-set a side.

Held: Para 7

The present issue, therefore, was not
an issue in those cases. Therefore, all
the three judgments, cited above, are
not
relevant
for
deciding
the
controversy involved in the present
special appeal. However, considering
the view taken by us, here-in-above,
this appeal is liable to be allowed. The
impugned order, whereby it has been
held
that
the
appellants
are
not
eligible, is set aside. The respondents
are directed to allow the appellants to
join the post, forthwith.

## Text

918 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

It is thus clear that it is open to a party to
challenge the continuance of the arbitrator if
circumstances exist that give rise to justifiable
doubts as to his independence or impartiality.

Section 12 (4) of the Act permits an
applicant to challenge the continuance of an
Arbitrator, even if he was earlier a party to the
appointment and the sub-section reads as
under:-

"A party may challenge an arbitrator
appointed by him, or in whose appointment he
has participated, only for reasons of which he
becomes aware after the appointment has
been made."

Section 13 (2) of the Act provides the
procedure for the challenge to the continuance
of an Arbitrator, which includes sending a
written statement of the reasons for the
challenge to the arbitral tribunal.

Under Section 13 (3) of the Act, power
has been conferred on the arbitral tribunal to
decide on the challenge.

4. The next relevant provision is Section
13 (4), which reads as under:-

"If a challenge under any procedure
agreed upon by the parties or under the
procedure under sub-section (2) is not
successful, the arbitral tribunal shall continue
the arbitral proceedings and make an arbitral
award."

Section 13 (5) provides that if a party is
aggrieved by such an award then such party
can challenge the award by making an
application under Section 34, wherein the
challenge which was rejected, can be
considered. Where the mandate of an
Arbitrator terminates by virtue of Section 15
(6), a substituted arbitrator shall be appointed
according to the rules that were applicable to
the appointment of the Arbitrator being
replaced. Once the parties fail to appoint an
Arbitrator in terms of the rules, then the Chief
Justice or his delegate under Section 11 (6) on
a request by a party can appoint an Arbitrator.
The scheme, therefore, for removal of an
Arbitrator and filling the resultant vacancy is
clear.

5. Considering these provisions in the
Act, which provide for a challenge to the
continuance of the Arbitrator, the present
application
is
not
maintainable
and
consequently, the application stands rejected.

6. On behalf of the petitioners, it is
pointed out that an application has already
been moved before the arbitrator. It is open to
the petitioners to press that application before
the arbitrator.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.08.2010

BEFORE
THE HON'BLE F.I.REBELLO, C.J.
THE HON'BLE SHRI NARAYAN SHUKLA, J.

Special Appeal No. 585 of 2010

Santosh Kumar Agnihotri and others

 ...Petitioner
Versus
State of U.P.

 ...Respondent

Counsel for the Petitioner:
H.G.S. Parihar

Counsel for the Respondent:
C.S.C.
A.M.Tripathi
Jyotinjay Verma

Constitution
of
India
Art.226appointment
of
B.R.C.
And
ABRC-
3 All] Santosh Kumar Agnihotri and others V. State of U.P.
919
petitioner have already worked as
coordinator
and
Block
Resource
Centre-without right of Renewal after
completing two years tenure-ear liar
Scheme abolished-new Scheme under
Sarva
Shiksha
Abhiyan
can
apply
without
claiming
any
preferential
right-misconceived-appellant can not
claim regular appointment but after
expiry of period of two years- eligible
for further consideration-Order passed
by Single judge-set a side.

Held: Para 7

The present issue, therefore, was not
an issue in those cases. Therefore, all
the three judgments, cited above, are
not
relevant
for
deciding
the
controversy involved in the present
special appeal. However, considering
the view taken by us, here-in-above,
this appeal is liable to be allowed. The
impugned order, whereby it has been
held
that
the
appellants
are
not
eligible, is set aside. The respondents
are directed to allow the appellants to
join the post, forthwith.

(Delivered by Hon'ble F.I.Rebello, C.J.)

1. The appellants are aggrieved by
the order of the learned Single Judge
dated 5.8.2010, whereby liberty was
given to the respondents-State and other
authorities to cancel the selection of
persons who had earlier worked as BRC
and ABRC and proceed with the fresh
selection in that regard. The interference
of the learned Single Judge was only in
respect of the appellants herein, and rest
of the candidates were allowed to work
and paid their salary regularly every
month.

2. A few facts necessary for
deciding this controversy may be set
out. The appellants herein, who were
original petitioners 2, 7 and 11, had
applied for the post of BRC and were
selected for the period commencing
2010. The tenure of the post is of two
years. They had also been earlier
selected and worked as BRC for the
period 2003 to February, 2007, thus
they were not working beyond the
period February, 2007, until they had
applied,
pursuant
to
the
fresh
advertisement.

3. The respondents-State sought to
cancel all the appointments on the
ground that three persons, who were
earlier working as BRC and eight
persons, who were earlier working as
ABRC, who were not eligible, were
selected. The learned Single Judge
rightly held that because of this
purportive defect, the entire selection
cannot be cancelled, but only the
selection of those candidates, who were
not eligible, can be cancelled and
accordingly passed the impugned order.

4. The appellants, who were earlier
selected for BRC have challenged that
order inasmuch as their selection was
cancelled pursuant to the direction
issued by this court.

5. The relevant clause on the basis
of which the State-respondent ought to
take a decision is the Notification of
29th of June, 2002. Clause (1) of that
Notification provides that those who
were working as BRC- ABRC will work
for two years and after two years, they
will not be selected and fresh process of
selection
would
be
initiated.
The
construction of this clause would mean
that those who are holding the post of
BRC-ABRC shall not be eligible for the
next immediate successive term. That
clause now does not say that after the
920 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
interregnum, they cannot apply afresh.
In other words, assuming that the intent
of the circular is that those who are
selected, cannot claim the permanent
right to those posts and also with a view
to get new people to oversee the system,
which appears to be also its objective.
The proper construction as we have set
out earlier, would be, that they would
not be eligible for the immediate next
term but from the subsequent terms after
the expiry of two years, they will be
eligible.

6. Our attention was also invited
to the judgment of this court rendered
in the case of Jagdish Maurya versus
State
of
U.P.
And
others,
an
unreported judgment dated 7.4.2010,
passed in Special Appeal No.188 of
2010. We have considered the said
judgment. We find that the issue in that
appeal is not in issue in the present
case. In that case, the appellants who
were already working on the post of
Coordinator
and
Block
Resource
Centre, were contending that after the
period of two years, they were eligible
to continue and fresh appointment shall
not be made. This court rejected the
contention of the appellant. Therefore,
it was the claim of the incumbent to
continue for the immediate next term,
which was rejected. Similar is the view
taken in the case of Krishna Pal Singh
versus State of U.P. And others in
Special Appeal No.164 of 2010 decided
on 23rd of March, 2010. Our attention
was also invited to the judgment of a
learned Single Judge passed in the case
of Shailendra Kumar Mishra and others
versus State of U.P. and others in Civil
Misc. Writ petition No.27778 of 2003,
decided on 9.4.2004, wherein the
learned Single Judge of this court held
that there was an earlier scheme, which
was replaced by the new scheme. The
contention was that they should be
allowed to continue in the new scheme.
The learned Single Judge, however,
observed that they have no right to
continue under the new scheme, as they
were on deputation. However, based on
the statement made on behalf of the
respondent-State,
they
have
been
allowed to apply for selections under
the 'Sarva Shiksha Abhiyan', with an
observation that in case, they have
applied
in
pursuance
of
the
advertisement made earlier, or apply a
fresh within a period of one month,
their
candidatures
shall
also
be
considered alongwith other applicants,
without any preference. The petition
was disposed of.

7. The present issue, therefore, was
not an issue in those cases. Therefore,
all the three judgments, cited above, are
not
relevant
for
deciding
the
controversy involved in the present
special appeal. However, considering
the view taken by us, here-in-above, this
appeal is liable to be allowed. The
impugned order, whereby it has been
held that the appellants are not eligible,
is set aside. The respondents are
directed to allow the appellants to join
the post, forthwith.

The
appeal
is
disposed
of
accordingly.
---------
3 All] Mahadev Prasad and another V. State of U.P.and others
921
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.08.2010

BEFORE
THE HON'BLE F.I. REBELLO, C.J.
THE HON'BLE S.N. SHUKLA, J.

Special Appeal Defective No. 788 of 2008

Mahadev Prasad & another ...Petitioners
Versus
State Of U.P. & others ...Respondents

Counsel for the Petitioner:
Sri O.P. Srivastava

Cousel for the Respondents:
C.S.C.

Constitution
of
India
Art.
226-writ
petition-alternative remedy-while identical
Writ Petitions challenging vires pendingheld -alternative remedy to approach
before tribunal not proper-matter remitted
back before Single Judge for decision on
merit.

Held: Para 7

The question, therefore, is whether the
jurisdiction is exclusive. On the facts of the
case it is open to the Court to exercise its
discretion
or
not
exercise
to
its
jurisdiction.
The
contention
of
the
petitioner is that the person similarly
situated like him are before the Courts and
these petitions are pending and in these
circumstances the direction issued by the
learned Single Judge to the petitioners to
go to the Administrative Tribunal to file a
claim petition is not proper. The rule of
alternative remedy would not bar a writ
court to exercise extraordinary jurisdiction
as the rule is a rule of procedure. The law
has been reiterated in the case of
Whirlpool Corporation Vs. Registrar of
Trade Marks, Mumbai and others (1998) 8
SCC 1.
Case law discussed:
(L&S) Vol.-1, Page -577, (1998) 8 SCC 1
(Delivered by Hon'ble F.I. Rebello, C.J.)

1. Heard counsels for the parties.

The appellants have filed the present
special appeal against the order of the
learned Single Judge, who refused to
exercise the jurisdiction by holding that the
petitioners have got equally efficacious
remedy by filing claim petition before the
U.P. Public Services Tribunal.

2. In the judgement of L. Chandra
Kumar Vs. Union of India and Others,
reported in 1997 Supreme Court Case
(L&S) Vol.- 1, Page- 577, the Hon'ble
Supreme Court in para 93 observed as
under:-

Para 93- "Before moving on to other
aspects, we may summarise our conclusions
on the jurisdictional powers of these
Tribunals. The Tribunals are competent to
hear matters where the vires of statutory
provisions are questioned. However, in
discharging this duty, they cannot act as
substitutes for the High Courts and the
Supreme Court which have, under our
constitutional set-up, been specifically
entrusted with such an obligation. Their
function
in
this
respect
is
only
supplementary and all such decisions of the
Tribunals will be subject to scrutiny before
a Divisions Bench of the respective High
Courts. The Tribunals will consequently
also have the power to test the vires of
subordinate
legislations
and
rules.
However, this power of the Tribunals will
be subject to one important exception. The
Tribunals shall not entertain any question
regarding the vires of their parent statutes
following the settled principle that a
Tribunal which is a creature of an Act
cannot declare that very Act to be
unconstitutional. In such cases alone, the