# Shanker Sharma v. State of Rajasthan

- **Citation:** (2013) 2 ILRA 1040
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-07-19
- **Case number:** Misc. Bench No.7558 of 2011
- **Bench:** Sibghat Ullah Khan, Dr. SATISH CHANDRA
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shanker-sharma-v-state-of-rajasthan-42541
- **Pages:** 4

## Headnote

C.S.C.,
Sri
Deepak
Srivastava
2 All] Nawab Haider Vs.Urban Cooperative Bank Ltd. & Ors.

1041
Sri Kishore Kumar Singh, Sri Nirmal
Kumar Yadav

Constitution of India, Art. 226-Recovery
against guarantor- loan advanced for
purchase
of
Car-petitioner
stood
guarantor-argument that firstly it should
be recovered from principal borrowers
assets or the property pledged by
borrower-held in view of law laid down
by Apex Court-amount can be recovered
from
the
guarantor-petitioner
being
member of cooperative society in terms
of section 40 equally liable to paypetition dismissed.

Held: Para-8
The
Supreme
Court
in
the
authority
reported in Bank of Bihar vs. Dr. Damodar
Prasad AIR 1969 Supreme Court 297,
(three judges) categorically held
that
liability of surety cannot be deferred until
remedies against principal debtor are
exhausted.
Subsequently
also
in
the
following authorities placing reliance upon
Section 128 of Contract Act, it has been
held by the Supreme Court that even
without proceeding against principal debtor
the proceedings for recovery can be taken
against guarantor/surety.

Case Law discussed:
2004(3) UPLBEC 2366; 2009(9) SCC 478;
2012(11) SCC 511.

## Text

1040 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

30.4.2003 and she joined her duties at SubCentre, Akbara Primary Health Centre, Pura
Bazar, District - Faizabad. She was paid
honorarium of Rs.50/- only which was
converted to Rs.200/- per month. Petitioner
has passed Class VIII-Madhyama which is
equivalent to Class X and she also
undergone some training in the department.
Petitioner has been working since then yet
she is not even being paid daily wages what
to say of regularization.

3. Sri Jaiswal has informed that
there are 11 posts of regular 'Dai'
available with the opposite parties and the
services
of
the
petitioner
can
be
regularized on one of these posts.

4. Learned Standing counsel has
submitted that there is no post of 'Dai'
with the department yet he admits that the
petitioner was appointed on part-time
'Dai'. There is a contradiction in the
counter affidavit and the arguments of the
State. Paying Rs.200/- per month can only
be explained as 'Begar' which has been
prohibited under Article 23 of the
Constitution of India, which is quoted as
under:-

"23. Prohibition of traffic in human
beings and forced labour

(1) Traffic in human beings and
begar and other similar forms of forced
labour
are
prohibited
and
any
contravention of this provision shall be an
offence punishable in accordance with
law.

(2) Nothing in this article shall
prevent
the
State
from
imposing
compulsory service for public purpose,
and in imposing such service the State
shall not make any discrimination on
grounds only of religion, race, caste or
class or any of them."

5. Petitioner has now worked for
almost ten years with the opposite parties.
She must definitely have become overage
by now. The petition is disposed of with a
direction to the opposite partis that in case
the said 11 posts are to be filled up, the
petitioner will also be allowed to
participate in the selection in view of the
law laid down in the case of Yamuna
Shanker Sharma Vs. State of Rajasthan
and others, (2007) 2 Supreme Court Cases
611 as also in the case of Mukesh
Chandra Vs. State of U.P. and others,
2000 (1) A.W.C. 221.

6. Since the petitioner belongs to
backward caste, the relaxation of age will
be available to her in that category also.
In any view of the matter, she will not be
debarred on the basis of age in
participating in the selection.

7. The petition is disposed of finally.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.07.2013

BEFORE
THE HON'BLE SIBGHAT ULLAH KHAN, J.
HON'BLE Dr. SATISH CHANDRA, J.

Misc. Bench No.7558 of 2011

Nawab Haider

 ...Petitioner
Versus
Urban Cooperative Bank Ltd. & Ors.
 Respondents

Counsel for the Petitioner:
Sri Vivek Srivastava, Sri Manoj Kumar Singh

Counsel for the Respondents:
C.S.C.,
Sri
Deepak
Srivastava
2 All] Nawab Haider Vs.Urban Cooperative Bank Ltd. & Ors.

1041
Sri Kishore Kumar Singh, Sri Nirmal
Kumar Yadav

Constitution of India, Art. 226-Recovery
against guarantor- loan advanced for
purchase
of
Car-petitioner
stood
guarantor-argument that firstly it should
be recovered from principal borrowers
assets or the property pledged by
borrower-held in view of law laid down
by Apex Court-amount can be recovered
from
the
guarantor-petitioner
being
member of cooperative society in terms
of section 40 equally liable to paypetition dismissed.

Held: Para-8
The
Supreme
Court
in
the
authority
reported in Bank of Bihar vs. Dr. Damodar
Prasad AIR 1969 Supreme Court 297,
(three judges) categorically held
that
liability of surety cannot be deferred until
remedies against principal debtor are
exhausted.
Subsequently
also
in
the
following authorities placing reliance upon
Section 128 of Contract Act, it has been
held by the Supreme Court that even
without proceeding against principal debtor
the proceedings for recovery can be taken
against guarantor/surety.

Case Law discussed:
2004(3) UPLBEC 2366; 2009(9) SCC 478;
2012(11) SCC 511.

(Delivered by Hon'ble S.U.Khan, J.)

1. Heard Sri Vivek Srivastava,
learned counsel for the petitioner, Sri
Deepak Srivastava, learned counsel for
opposite
party
no.1
and
learned
Additional Chief Standing Counsel for
other opposite parties.

2. The petitioner's son Zeeshan
Haidar respondent no.3 took some loan
from respondent no.1. Petitioner was
guarantor of the loan in terms of Section
40 of U.P. Co-operative Societies Act,
1965. Section 40 is quoted below:-

"40. Deduction from salary to meet
society's claim in certain cases.

(1)Notwithstanding
anything
contained in any law for the time being in
force, a member of a co-operative society
may execute an agreement in favour of
the co-operative society providing that his
employer shall be competent to deduct
from the salary or wages payable to him
by the employer, such amount as may be
specified in the agreement and to pay the
amount so deducted to the co-operative
society in satisfaction of any debt or other
demand owing by the member of the
society.

(2)Notwithstanding anything in any
law for the time being in force, the
employer shall, if so required by the cooperative society by requisition in writing
and so long as such debt or demand or
any part of it remains unpaid, make the
deduction
in
accordance
with
the
agreement executed under sub-section (1)
any pay the amounts so deducted to the
society within fourteen days from the date
of the deduction.

(3)An
employer
who
without
sufficient cause fails to make the
deduction in terms of sub-section(2), or
having made, any such deduction fails to
pay the amount so deducted to the society
within fourteen days from the date of
deduction, shall be liable to the society to
the extent of the amount which the
employer has failed to deduct or to pay,
as the case may be."

3. Petitioner is an employee of U.P.
State
Government
working
under
respondent
no.2
Executive
Engineer
Yantrik Khand Lok Nirman Vibhag,
Lucknow. Respondent no.3 petitioner's
1042 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

son and petitioner both were members of
Co-operative Society respondent no.1.
Respondent no.3 took loan of Rs.234118/-
from the society in 2002 for purchasing a
car. In term of Section 40 of the Act,
petitioner stood surety for the loan of his
son respondent no.3. Petitioner's son
defaulted in payment. Hence by virtue of
the agreement executed by the petitioner
in favour of respondent no.1 and in terms
of
Section
40
(1)
of
the
Act,
communication was sent by respondent
no.1 to respondent no.2 dated 23.6.2011
and thereafter the loan was started to be
deducted from the salary of the petitioner.
The said office order dated 23.6.2011 has
been challenged through this writ petition.

4. It has been stated that up till 2007
installments were paid but thereafter
respondent
no.3
stopped
payment.
Thereafter it is stated in para 5 of the writ
petition that respondent no.3 son of the
petitioner started behaving cruelly with
the petitioner and thereupon petitioner
disowned his son through advertisement
in newspaper.

5. In this writ petition, interim order
was passed on 12.9.2011 directing that
recovery shall not be made from the
petitioner, however, it could be made by
selling the car as well as immovable
property owned by respondent no.3.

6. Respondent no.1 has filed
supplementary affidavit stating therein
that its employee contacted the opposite
party no.3 but he misbehaved with him
and refused to give information regarding
the house and the car, hence car has not
been recovered.

7. The anchor-sheet of the argument
of learned counsel for petitioner is that in
view of Supreme Court authority reported in
Pawan Kumar Jain vs. The P.I.I. Corporation
of U.P. 2004 (3) UPLPEC 2366, the
recovery should have first been made from
the principal borrower i.e. respondent no.3.
Firstly, documents have not been filed to
show that petitioner was simply a guarantor.
Secondly, by virtue of Section 40 of U.P.
Co-operative Societies Act, petitioner is
squarely liable. Thirdly, the Supreme Court
Authority reported in Pawan Kumar Jain
deals only with recoveries under U.P. Public
Money (Recovery of Dues) Act, 1972
Section 4 (2)(a) which requires that first
recovery shall be made by selling pledged
goods. If the instant case the pledged car is
not traceable.

8. The Supreme Court in the
authority reported in Bank of Bihar vs.
Dr. Damodar Prasad AIR 1969 Supreme
Court 297, (three judges) categorically
held that liability of surety cannot be
deferred until remedies against principal
debtor are exhausted. Subsequently also
in the following authorities placing
reliance upon Section 128 of Contract
Act, it has been held by the Supreme
Court that even without proceeding
against principal debtor the proceedings
for recovery can be taken against
guarantor/surety.

(I)Industrial Investment Bank of
India Ltd. vs. Biswanath Jhunjhunwala
2009 (9) SCC 478.

(II)Ram Kishun and others vs State
of U.P. and others 2012 (11) SCC 511.

9. Accordingly we do not find
anything
wrong
in
the
action
of
respondent no.1 seeking to recover the
amount of loan advanced to respondent
no.3 from the salary of the petitioner.
2 All] Prem Singh Vs. State of U.P. and Ors.

1043

10. Writ petition is, therefore,
dismissed.

11. Stay order stands automatically
discharged.
---------
ORIGINAL JURISDICTION
CIVIL- SIDE
DATED: ALLAHABAD 30.07.2013

BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.

Civil Misc. Writ Petition No.8876 of 2013

Prem Singh

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

Counsel for the Petitioner:
Sri Ashok Khare, Sri Siddharth Khare

Counsel for the Respondents:
C.S.C.

Constitution of India-Art. 226- Ad-hoc
appointment-on post of L.T. grade teachermade under provision of Removal of
difficulties order 1981-approved by DIOS
continued upto 17 years-after retirementclaimed
post
retirel
benefits-denied-on
ground -appointment being ad-hoc basisnot a regular one-held-appointment on ad
hoc
basis
following
procedure
for
appointment-is substantive appointmentmade under difficulties removal order 1981held-entitled for pensionary benefit-petition
allowed.

Held: Para-30 & 31
30. The principle which can be discerned
from the above mentioned judgment is
that
if
adhoc/stopgap/temporary
employee having essential qualification
and
is
appointed
in
terms
of
the
statutory Rules and he continues for a
long time and fulfills the qualifying
service is entitled for pension and other
retiral benefits.
31. Having regard to the facts and
circumstances of the case I am of the
view that petitioner is entitled for the
post retiral benefits as his appointment
was made in terms of the statutory Rules
viz. Removal of Difficulties Order, 1981,
against a short term vacancy with the
approval
of
the
appropriate
authority/District Inspector of Schools
and he worked uninterruptedly for 17
long years.

Case Law discussed:
2007 (3) UPLBEC 2073; 2006 (3) AWC 2909;
(2000) 8 SCC 25; (2001) 1 SCC 637; (1989)
UPLBEC 501; 2006(1) ALR 839; (2002) 4 LLN
566; 2007(3) UPLBEC 2073; 2012(2) ALJ 132

(Delivered by Hon'ble Pradeep Kumar
Singh Baghel, J.)

1. By way of this writ petition the
petitioner who was appointed as Assistant
Teacher has challenged the order passed
by the Joint Director dated 3.11.2012
whereby petitioner's representation for
payment of post-retiral benefit has been
rejected on the ground that petitioner was
not a permanent teacher.

2. Foundational facts in brief are that
Karma Kshettra Inter College, Etawah is a
recognized institution, wherein education
is imparted upto the level of Intermediate.
It receives aid out of State Fund. The
provisions of the U.P. Intermediate
Education Act, 1921 , the Regulations
framed thereunder, the Uttar Pradesh
Secondary Education (Services Selection
Board) Act, 1982 (U.P. Act No. 5 of
1982) and the U.P. High Schools and
Intermediate College (Payment of Salaries
to Teachers and other Employees) Act,
1971 are applicable to the institution. The
institution
is
administered
by
the
respondent no.6, the Committee of
Management.