# Shrawan Kumar v. U.P. Institutional Service Boar and others

- **Citation:** (2006) 3 ILRA 1167
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-08-30
- **Case number:** Civil Misc. Writ Petition No.19260 of 2005
- **Bench:** D.P. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shrawan-kumar-v-u-p-institutional-service-boar-and-others-40776
- **Pages:** 5

## Headnote

Sri O.P. Singh
3All] Shrawan Kumar V. U.P. Institutional Service Boar and others 1167
Sri R.S. Singh

U.P. Cooperative Societies Employees
Services
Regulation,
1975-Regulation
12-cut of dated-for purpose of agevacancy advertised on 23.6.04-fixation
of cut of date as 1.7.04-held-illegalpetitioner was 18 years 5 month on 1st
July, 04-hence on 1.1.04 being under age
can not be appointed-disapproval by
Board held proper.

Held: Para 7

Let us apply the said principles in the
present case. A copy of the select list
together with the details is annexed with
the petition. It shows that on 1st. of
July, 2004, the petitioner was 18 years
five months. Had the cut off date been
fixed
correctly
in
accordance
to
regulation 12, the petitioner would have
been under age on 1st. of January, 2004.
Similarly, there may be large number of
candidates who may have become over
age on 1st of July, 2004 and may not
have
applied
in
pursuance
of
the
advertisement.
As
already
stated
hereinabove, the Board being custodian
of the rights of equal opportunity to the
teeming millions of unemployed youth, it
was justified in refusing the approval.
Case law discussed:
2006 (4) SCC-1
1998 (2) ESC-1331

## Text

1166 INDIAN LAW REPORT ALLAHABAD SERIES [2006
but in the absence of the approval by the
Inspector such an order will cease to
operate on expiry of sixty days from the
date of the order, although it will continue
to exist though inoperative. But if the
order of suspension is approved even after
the expiry of sixty days, it will come into
force again and will become effective
immediately on such approval. Any other
interpretation
will
lead
to
serious
consequences. Inaction on the part of the
Inspector either deliberate or otherwise
may frustrate the object of the provision
itself."

5. In view of the aforesaid, it is
clear, that the District Inspector of
Schools was competent to approve or
disapprove the suspension order even
after the expiry of 60 days. Consequently,
the submission of the learned counsel for
the petitioner is bereft of merit. No other
point was raised by the learned counsel
for the petitioner.

6. It has come on record that there is
a lot of acrimony between the petitioner
and the Manager of the Committee of
Management of the Institution concerned.
From the record, it transpires, that the
petitioner was suspended on a variety of
charges on three occasions and on each
occasion the petitioner obtained an
interim order from the Court. Upon a
query being raised by the Court, Sri
V.K.Singh, the learned counsel for the
Manager
and
the
Committee
of
Management submitted, that no charge
sheet was issued on the suspension order
issued earlier and, that the charge-sheet,
pursuant to the suspension order dated
27.2.2005 had been issued on 10.4.2006
which the petitioner refused to accept. Dr.
Daya Shanker, on the other hand,
submitted that till date, no charge-sheet
has been served upon the petitioner and,
therefore, the question of refusal to accept
the charge sheet does not arise.

7. Be that as it may. In view of the
fact, that the suspension order has been
approved and a charge-sheet has been
issued, I direct the learned counsel for the
Committee of Management and the
Manager to serve a copy of the chargesheet upon the learned counsel for the
petitioner today, who in turn, will
handover or forward the copy to the
petitioner. The petitioner may file a reply
to
the
said
charge-sheet
within
a
reasonable period. Upon the receipt of the
reply, the Committee of Management may
proceed accordingly and complete the
inquiry and pass a final order within four
months from the date of the submission of
the reply to the charge-sheet.

8. The writ petition dismissed with
the aforesaid observation.
Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.08.2006

BEFORE
THE HON'BLE D.P. SINGH, J.

Civil Misc. Writ Petition No.19260 of 2005

Shrawan Kumar

...Petitioner
Versus
U.P. Institutional Service Board and
others

 ...Respondents
Connected with:
Civil Misc. Writ Petition No.53585 of 2004

Counsel for the Petitioner:
Sri M.P. Gupta

Counsel for the Respondents:
Sri O.P. Singh
3All] Shrawan Kumar V. U.P. Institutional Service Boar and others 1167
Sri R.S. Singh

U.P. Cooperative Societies Employees
Services
Regulation,
1975-Regulation
12-cut of dated-for purpose of agevacancy advertised on 23.6.04-fixation
of cut of date as 1.7.04-held-illegalpetitioner was 18 years 5 month on 1st
July, 04-hence on 1.1.04 being under age
can not be appointed-disapproval by
Board held proper.

Held: Para 7

Let us apply the said principles in the
present case. A copy of the select list
together with the details is annexed with
the petition. It shows that on 1st. of
July, 2004, the petitioner was 18 years
five months. Had the cut off date been
fixed
correctly
in
accordance
to
regulation 12, the petitioner would have
been under age on 1st. of January, 2004.
Similarly, there may be large number of
candidates who may have become over
age on 1st of July, 2004 and may not
have
applied
in
pursuance
of
the
advertisement.
As
already
stated
hereinabove, the Board being custodian
of the rights of equal opportunity to the
teeming millions of unemployed youth, it
was justified in refusing the approval.
Case law discussed:
2006 (4) SCC-1
1998 (2) ESC-1331

(Delivered by Hon'ble D.P. Singh, J.)

1. Heard Sri M.P. Gupta for the
petitioner, Sri O.P. Singh for respondent
No.1 and Sri R.S. Singh, learned counsel
for the respondents no. 2, 3 and 4.

2. This petition is directed against an
order dated 27.12.2004 passed by the
respondent no.1 by which the approval of
the appointment of the petitioner has been
refused.

3. Pivotal facts relevant for the
decision of this petition are that eleven
posts of class IV employees in District
Cooperative Bank Ltd., Mirzapur were
advertised on 23.6.2004. Petitioner and
others applied and the petitioner was duly
selected as shown in the select list
published on 5th. July, 2004. However,
the respondent Service Board refused to
grant the approval on the ground that the
cut off date with respect to the age of
candidates
was
fixed
against
the
provisions of law.

4. Learned counsel for the petitioner
has urged that the objection raised on
behalf of the Board was highly technical
and since the petitioner was otherwise
qualified, the approval ought to have been
granted and the appointment letter issued.

5. The U.P. Cooperative Institutional
Service Board was constituted in exercise
of powers under Section 122 of the U.P.
Cooperative Societies Act, 1965 for the
purposes of recruitment, training and
disciplinary control of employees of
Cooperative
Societies.
The
U.P.
Cooperative
Societies
Employees
Services Regulation, 1975, governs the
service conditions of such employees.
Regulation 5 provides for recruitment and
appointments in the Cooperative Societies
through the Board whether it is by direct
recruitment or by promotion. Sub-clause
(v) mandates that every selection shall be
subject to the approval of the Board and
the appointment can only be made with
the
prior
approval
of
the
Board.
Regulation 12 provides that if the posts
are advertised in the first half of the year,
i.e. ending on June 30, the cut off date for
the purpose of age shall be first of January
of that year and in case of advertisement
subsequent to 30th June, the cut off date
1168 INDIAN LAW REPORT ALLAHABAD SERIES [2006
would be first of July of the year of
recruitment. It further provides that the
candidates should not be less than 18
years or more than 35 years of age on the
aforesaid cut off date. Regulation 15
provides that no appointment can be made
except in the manner provided in the
regulations without the prior approval of
the Board and in the order as mentioned
in the list communicated by the Board.

6. A copy of the advertisement is
annexed with the petition and admittedly
it was published on 23rd. June, 2004 but
the cut off date has been fixed as 1st. July,
2004. In the impugned order the Board
found that the fixation of the cut off date
was against the provisions of regulation
12 and this violation deprived large
number of candidates from applying for
the post. It is also apparent that though the
advertisement was made on 23rd. June,
2004 but only eight days were given for
submission of the forms i.e. uptil 30th.
June, 2004, while the interview was fixed
for 4th. July, 2004. The nature of the
powers conferred on the Board is one of
trust
of
vast
number
of
eligible
unemployed citizens. The Board is the
repository of the interest of all those
eligible persons who may apply for
recruitment.
The
petitioner
though
contends that it is a mere technicality, but
the Board has to examine the matter from
a larger and broader perspective and has
to act as a guardian for equal right
protection of such unemployed people.
The Apex Court through a Constitutional
Bench pronouncement in the case of
Secretary State of Karnataka and
others v. Uma Devi (3) others [2006 (4)
S.C.C. 1] has cautioned the courts against
individualization of justice. It held that
high
prerogative
writs
should
not
normally be issued except after balancing
rights of the numerous persons who are
not before the Court as against the few
who approach it. Considering large
number of decisions where directions
were issued presumably on the basis of
equitable considerations, it posed a
question and then answered it to the
following effect:

"The question arises, equity to whom
? Equity for the handful of people who
have approached the Court with a claim,
or equity for the teeming millions of this
country seeking employment and seeking
a fair opportunity for competing for
employment? When one side of the coin is
considered, the other side of the coin has
also to be considered and the way open to
any court of law or justice, is to adhere to
the law as laid down by the Constitution
and not to make directions, which at
times, even if do not run counter to the
constitutional scheme, certainly tend to
water
down
the
constitutional
requirements."

7. Let us apply the said principles in
the present case. A copy of the select list
together with the details is annexed with
the petition. It shows that on 1st. of July,
2004, the petitioner was 18 years five
months. Had the cut off date been fixed
correctly in accordance to regulation 12,
the petitioner would have been under age
on 1st. of January, 2004. Similarly, there
may be large number of candidates who
may have become over age on 1st of July,
2004 and may not have applied in
pursuance of the advertisement. As
already stated hereinabove, the Board
being custodian of the rights of equal
opportunity to the teeming millions of
unemployed youth, it was justified in
refusing the approval.
3All] Shrawan Kumar V. U.P. Institutional Service Boar and others 1169
8. Further, though, no time limit has
been fixed under the regulations for
accepting application from the candidates,
eight days provided by the Bank cannot
be said to be reasonable. Thus, on this
score also the Board cannot be faulted.
The Board has already directed the Bank
to re-advertise the vacancy.

9. Lastly it is urged that in view of
rule 4 read with Rule 6 of U.P.
Recruitment in services (Age limit) Rules
1972, the cut-off date provided in the
advertisement was in order due to the
overriding effect of the Rules. In support
he has relied upon a Single Judge decision
of this court in the case of Raj Vikram
Khare V. Ist J, Banda [1998 (2) ESC
1331]

10. The U.P. Recruitment in
Services
(Age
limit)
Rules,
1972
(hereinafter referred to as 1972 Rules)
were framed under the proviso to Article
309 of the Constitution. It would be useful
to note Article 309 of the Constitution:

"Recruitment and conditions of
service of persons serving the Union or a
State.- Subject to the provisions of this
Constitution, Acts of the appropriate
Legislature may regulate the recruitment,
and conditions of service of persons
appointed, to public services and posts in
connection with the affairs of the Union
or of any State:
Provided that it shall be competent
for the President or such person as he
may direct in the case of services and
posts in connection with the affairs of the
Union, and for the Governor of a State or
such person as he may direct in the case
of services and posts in connection with
the affairs of the State, to make rules
regulating the recruitment, and the
conditions
of
service
of
persons
appointed, to such services and posts until
provision in that behalf is made by or
under
an
Act
of
the
appropriate
Legislature under this article, and any
rules so made shall have effect subject to
the provisions of any such Act."

11. It is apparent that the power to
frame Rules under it is qua recruitment
"to
public
services
and
posts
in
connection with the affairs of the Union
or of any State". The question is whether
recruitment by a Cooperative Society is
recruitment to any public service in
connection with the affairs of the State.

12. Cooperation is a movement.
People with similar interests and goal get
together to form a Society. A Cooperative
Society by its very nature is an
organization where people voluntarily
associate together on the basis of equality
for the promotion of their common
economic interest which they cannot
achieve by individual isolated action
because of the weakness of the economic
position of a large majority of them. it is
purely a private organization having no
nexus with the affairs of the State. No
doubt, it is controlled and regulated by the
U.P. Cooperative Society Act, 1965, but
its
character
remains
private
and
individual. Rules have been framed for
maximizing economic outcome and to
regulate the recruitment and conditions of
service of its employees. The employees
are paid from the coffers of the society
and are its employees for all purposes and
do not hold any civil post under the State.
As noticed in the opening part of this
judgment, Rules have been framed under
the 1965 Act. Rules of 1972 only apply to
government
Servants
and
not
to
employees
of
Cooperative
Societies,
1170 INDIAN LAW REPORT ALLAHABAD SERIES [2006
therefore neither ratio in Raj Vikram
Khare (Supra) nor the rules apply in the
present case.

13. Apart from the aforesaid, no
pleadings have been raised in the writ
petition to show how the 1972 Rules
apply to employees of the Cooperative
Society.

14. For the reasons above, this is not
a fit case for interference under Article
226
of
the
Constitution
of
India.
However, in case, any fresh recruitment is
made, as directed by the Bank, the
petitioner of either the present petition or
the connected petitions can apply, but
their claim may not be dislodged only on
the ground of age. With the aforesaid
observation, the petition is rejected. No
order as to costs. Petition Dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.10.2006

BEFORE
THE HON'BLE R.K. RASTOGI, J.

Criminal Misc. Application No. 11893 of
2004

Shiv Narain Jaiswal and others

...Applicants
Versus
State of U.P. and another

...Opposite Parties

Counsel for the Applicants:
Sri R.S. Gupta

Counsel for the Opposite Parties:
Sri Brijesh Sahai
A.G.A.

Code of Criminal Procedure-Section 156
(3)-power of the Magistrate to register
and investigate the case-treating the
application under Section 156 (3)-as a
complaint.

Held: Para 24

The position that emerges out of the
discussion attempted above is that,
taking into consideration the above
rulings of Hon'ble Apex Court and Full
Bench of this Court, the Single Judge
ruling in Shyam Lal Jaiswal's case laying
down a contrary view can not be
followed and in view of the above ruling
of Hon'ble Supreme Court and the Full
Bench of this Court, the order passed by
the learned Magistrate is completely
valid . He had jurisdiction to pass an
order for registration of the case as a
complaint
on
an
application
under
section 156(3) Cr. P. C. as laid down by
the above Full Bench on the point no. 2
in its judgement.
Case law discussed:
1997 (35) ACC-371 (SC), 2004 (1) ACC-831,
2001 (Suppl.) ACC-277, J.T. 2001 (2) SC-81,
AIR 1961 SC-986, AIR 1977 SC-240. 2001 (43)
ACC-50, 1997 (35) ACC-371 (SC), 2000 (41)
ACC-831, 2001 (Suppl.) ACC-277

(Delivered by Hon'ble R.K.Rastogi, J.)

1. This is an application under
section 482 Cr.P.C. for quashing the
proceedings of criminal case no. 3025 of
2002, Abhay Pratap Singh Vs. Shiv
Narain Jaiswal and others, pending before
the
the
Chief
Judicial
Magistrate,
Azamgarh and the orders dated 23.9.2002
and 2.1.2003 passed by the Chief Judicial
Magistrate, Azamgarh.

I have heard learned counsel for the
applicants and learned A.G.A. for the
State.

2. The facts relevant for disposal of
this application are that Abhay Pratap
Singh, (O.P.no. 2 in this case) moved an