# Shri Gopal Gupta and others v. State of U.P

- **Citation:** (2010) 1 ILRA 31
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-01-21
- **Case number:** Civil Misc. Writ Petition No. 2682 of 2010
- **Bench:** Satya Poot Mehrotra, Kashi Nath Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-gopal-gupta-and-others-v-state-of-u-p-41467
- **Pages:** 4

## Headnote

Constitution of India Art.-226-Petitioner
working as lecturer- opted Contributory
Pension Fund benefit-in view of G.O.
Dated 25.8.99 opted G.P.F. with pensioncan not be refused-option can be given
even prior one month to retirement.

Held: Para- 17

In our opinion, the petitioners in the
present Writ Petition, who exercised
32 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
their option in the year 2004 in terms of
the Government Order dated 25.8.1999,
are entitled to the benefit of GPF Scheme
with Pension.
Case law discussed:
Civil Misc. Writ Petition NO. 25140 of 2001 (Dr.
Shri Gopal Gupta and others Vs. State of U.P
and others), Civil Misc. Writ Petition No. 13169
of 2008 (Kirti Chand Gupta and others Vs.
State of U.P. and others).

## Text

1 All] Dr. Raj Kumari Singh and another V. State of U.P. and others
31
report and other documents also must
have been weeded out and therefore,
directing for re-trial for the case will only
amount to the harassment of the parties
without any fruitful results.

17. Learned AGA, after having gone
through the report of the Session Judge
also submits that on the peculiar facts of
the case, directing for retrial will not be
very material but he contended that the
alteration of the offence by the trial judge
was not very justified.

18.

Having
given
anxious
consideration
to
all
the
attending
circumstances I am of the view that the
appeal preferred by the accused persons
against their conviction in this court is
their first appeal. The Apex Court has
held that the first appeal is a continuation
of trial. Section 384 to and 386 Cr.P.C.
leaves no room for doubt that for deciding
an appeal on merits perusal of the trial
court record is sine Qua non to critically
appreciate evidences to separate the
grains from the chaff. It is incumbent
upon the appellate court to look into the
record independently than what has been
stated by the trial court and come to it's
own conclusions which not possible in
this appeal. So far So far as direction of
retrial is concerned, in view of the fact
that total documentary as well as other
evidences have been lost directing for re
trial will be very unfair to the accused
persons as they will never be able to
convince
the
court
that
allegations
levelled by the prosecution and the
deposition by it's witnesses are not true.
The spot scene must have been altered by
now. Resultantly in consonance with
above exposition of law by the Supreme
Court there is no option left but to allow
this appeal and set aside the impugned
conviction and sentence imposed on the
appellant.

19. In view of the above, this appeal
is allowed. The conviction and sentence
of the accused appellants are hereby set
aside and they are acquitted charged
under section 325/34 IPC. All the
appellants are on bail. They need not
surrender. Their bail bonds are cancelled
and sureties discharged.

20. A copy of judgement is directed
to transmit to the trial court for its
intimation.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.01.2010

BEFORE
THE HON'BLE SATYA POOT MEHROTRA, J.
THE HON'BLE KASHI NATH PANDEY, J.

Civil Misc. Writ Petition No. 2682 of 2010

Dr. Raj Kumari Singh and another

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

Counsel for the Petitioner:
Sri R.P. Dubey

Counsel for Respondent:
C.S.C.

Constitution of India Art.-226-Petitioner
working as lecturer- opted Contributory
Pension Fund benefit-in view of G.O.
Dated 25.8.99 opted G.P.F. with pensioncan not be refused-option can be given
even prior one month to retirement.

Held: Para- 17

In our opinion, the petitioners in the
present Writ Petition, who exercised
32 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
their option in the year 2004 in terms of
the Government Order dated 25.8.1999,
are entitled to the benefit of GPF Scheme
with Pension.
Case law discussed:
Civil Misc. Writ Petition NO. 25140 of 2001 (Dr.
Shri Gopal Gupta and others Vs. State of U.P
and others), Civil Misc. Writ Petition No. 13169
of 2008 (Kirti Chand Gupta and others Vs.
State of U.P. and others).

(Delivered by Hon'ble S.P. Mehrotra, J.)

1. Heard Sri R.P. Dubey, learned
counsel for the petitioners and the learned
Standing Counsel appearing for the
respondents.

2. The learned counsel for the
parties are agreed that the controversy
involved in the present Writ Petition is
covered by the earlier decisions of this
Court, referred to hereinafter in the
present Judgment, and therefore, the
present Writ Petition may be decided at
this stage itself.

3. From the averments made in the
Writ Petition, it appears that the petitioner
no. 1 Dr. Raj Kumari Singh was
appointed as Lecturer in B.Ed. on
1.10.1977 at Daya Nand Arya Kanya
Degree College, Moradabad. The date of
birth of the petitioner no. 1 Dr. Raj
Kumari Singh is 5.12.1952, and she is to
attain the age of superannuation on
4.12.2014, and is due to retire on
30.06.2015 after getting Session benefit.

4. It further appears that the
petitioner no. 2 Dr. Poonam Gupta was
appointed as lecturer in Zoology in the
aforesaid College on 14.02.1981. The date
of birth of the petitioner no. 2 Dr. Poonam
Gupta is 29.9.1956, and she is to attain
the age of superannuation on 29.8.2018,
and is due to retire on 30.06.2019 after
getting Session benefit.

5. It is, interalia, stated in the Writ
Petition that the aforesaid College is
affiliated to Mahatma Jyotiba Phule Rohil
Khand University, Bareilly.

6. It further transpires that initially
the petitioners opted for Contributory
Provident Fund Scheme (CPF). However,
in the year 2004, the petitioners exercised
their options in terms of the Government
Order dated 25.8.1999 for switching over
from
Contributory
Provident
Fund
Scheme (CPF) to General Provident Fund
Scheme
(GPF)
with
Pension.
The
intimation in regard to the exercise of
options in the year 2004 by the petitioners
and other teachers working in Daya Nand
Arya Kanya Degree College, Moradabad
was sent by the Principal of the College to
the Director of Higher Education, U.P.,
Allahabad by the Communication dated
2.5.2004
(Annexure-8
to
the
Writ
Petition).

7. It is, interalia, prayed in the Writ
Petition that writ, order or direction in the
nature of mandamus be issued directing
the respondents to accord the benefit of
GPF plus Pension Scheme to the
petitioners
in
accordance
with
the
Government Order dated 25.8.1999, and
various decisions of this Court.

8. Facts relevant for deciding the
present Writ Petition are as under.

9. The State Government from time
to time has issued Government Orders
permitting the teachers to exercise their
options
for
switching
over
from
Contributory Provident Fund Scheme
1 All] Dr. Raj Kumari Singh and another V. State of U.P. and others
33
(CPF) to General Provident Fund Scheme
(GPF) with Pension.

10. The last such Government Order
was issued on 25.8.1999 (Annexure 5 to
the Writ Petition) which permitted the
teachers to exercise their options before
one year of their retirement. However, by
the Government Order dated 5/6.5.2000
(Annexure 6 to the Writ Petition), a
clarification was issued that option could
be exercised only by such teachers, who
were
governed
under
the
General
Provident Fund Scheme and not under the
Contributory Provident Fund Scheme.

11. It appears that this Court in Civil
Misc. Writ Petition No. 25140 of 2001
(Dr. Shri Gopal Gupta and others Vs.
State of U.P and others) considered the
aforesaid
Government
Orders
dated
25.8.1999 and 5/6.5.2000, and held by the
Judgment and Order dated 26th October,
2006 as follows:

"....The policy of the Government
providing benefit of GPF plus pension
Scheme at no point of time denied the
benefits to those teachers who had not
opted for the said scheme prior to 25th
August, 1999 or during the period
prescribed either in the Government
Order of 1980 or 1982. Since the scheme
remained in existence and time for giving
option was extended from time to time, the
interpretation given by the State to the
aforesaid Government order dated 25th
August, 1999 and the clarifications dated
5th June, 2000 and 12th July, 2000 cannot
be sustained in the eyes of law.
The
petitioners
who
had
applied/opted for GPF plus pension
scheme though they were covered under
the CPF scheme, one year before their
date of retirement i.e. during the extended
period as per the Government Order
dated 25th August, 1999 could not have
been refused the said benefit on the
ground that the aforesaid scheme/option
was open only for those teachers who are
covered by the GPF scheme........"

12. Copy of the said Judgment and
Order dated 26th October, 2006 has been
filed as Annexure 7 to the Writ Petition.

13. It further appears that the State
Government
filed
a
Special
Leave
Petition before the Supreme Court being
Petition for Special Leave to Appeal
(Civil) No. 722 of 2008.

14. By the Order dated 3.11.2008
(Annexure 9 to the Writ Petition), their
Lordships
of
the
Supreme
Court
dismissed the said Special Leave Petition.

15. Thus, the aforesaid Judgment
and Order dated 26th October, 2006
became final.

16. This position has not been
disputed by the learned Standing Counsel.

17. In our opinion, the petitioners in
the present Writ Petition, who exercised
their option in the year 2004 in terms of
the Government Order dated 25.8.1999,
are entitled to the benefit of GPF Scheme
with Pension.

18. As noted earlier, the petitioner
no. 1 is due to retire on 30.6.2015 while
the petitioner no. 2 is due to retire on
30.06.2019, and therefore, the options
exercised by the petitioners in the year
2004 have been exercised as per the
requirement of the said Government
Order dated 25.8.1999.
34 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
19. We may mention that in Civil
Misc. Writ Petition No. 13169 of 2008
(Kirti Chand Gupta and others Vs. State
of U.P. and others) connected with
various other Writ Petitions, similar
controversy was involved. A Division
Bench of this Court by its Judgment and
Order dated 16th April, 2009 (Annexure
10 to the Writ Petition) decided the said
Writ Petitions following the decision of
this Court in Dr. Shri Gopal Gupta
(supra), and gave directions to the
respondents in the said Writ Petitions for
extending
the
benefit
of
the
said
Government Order dated 25th August,
1999 to the petitioners in the said Writ
Petitions.

20. Respectfully following the above
decisions, we decide the present Writ
Petition giving similar directions.

21. The Writ Petition is accordingly
allowed.

22. The respondents are directed to
give benefit of the Government Order
dated 25.08.1999 to the petitioners in
terms of the options exercised by the
petitioners within three months of the
filing of the certified copy of this Order
before the Director of Higher Education,
Uttar Pradesh, Allahabad.

23. On the facts and in the
circumstances of the case, the parties will
bear their own costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.01.2010

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 2958 of 2010

Sudhir Kumar

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

Counsel for the Petitioner:
Sri Bhanu Prakash Singh

Counsel for the Respondent:
C.S.C.

Constitution Of India Act-226-Selection
of petition in Special B.T.C. Course- in
year-2008- obtained 323 out of 600- on
last date of Submission of Form 20.2.09
and subsequently the result of basic
paper dated on 2.9.09 and theory marks
enhance from 323 to 339-whether the
enhance
marks
can
be
taken
into
account for consideration of merit? Held
'No' reasons -explained.

Held: Para-19

In view of the above, I am categorically
of the opinion that the marks obtained
by the petitioner in back paper as a
result of his appearing therein after the
last date of submission of the application
form cannot be allowed to be considered
by respondent No.2 for considering his
candidature for admission in Special
B.T.C. Course, 2008 since the same
would not relate back entitling him to
seek a direction to the respondent No.2
to take into account the new marks
which he has obtained subsequently as a
result of his appearing in back paper.
The writ petition therefore lacks merit.
Dismissed.
Case law discussed:
W.P. No.1920 of 2010, (Ankit Kumar Tiwari &
Anr. Vs. State of U.P. & Ors.), Ankit Kumar