# Shri Tulsi Smarak Samiti Rajapur & Anr v. D.M. Chitrakoot & Ors

- **Citation:** (2016) 5 ILRA 1464
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-30
- **Bench:** Sudhir Agarwal, Mohd. Tahir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-tulsi-smarak-samiti-rajapur-anr-v-d-m-chitrakoot-ors-43776
- **Pages:** 7

## Text

1464 INDIAN LAW REPORTS ALLAHABAD SERIES
Learned Standing Counsel stated that in case the application was still pending, the same would be considered
and decided expeditiously.

Held that where a statutory authority fails to decide an application within a reasonable time, the High Court,
in exercise of its jurisdiction under Article 226 of the Constitution, may issue a writ of mandamus directing
consideration and decision of such application, without entering into the merits of the claim.

Accordingly, without expressing any opinion on the merits of the case and considering the facts and
circumstances, the writ petition was disposed of with a direction to the competent authority to consider and
decide the petitioner's application for transfer of firearm licence by a reasoned and speaking order within a
period of three months from the date of production of a certified copy of the order.

The writ petition was finally disposed of.

(Delivered by Hon'ble Mahesh Chandra Tripathi, J.)

1. Heard learned counsel for the petitioner and learned Standing Counsel for the
respondents.

2. The grievance of the petitioner is that he applied for transfer of firearm licence vide
application dated 16.2.2015 but the said application has not yet been decided by the respondents.

3. Learned Standing Counsel fairly states that in case the application is still pending and
has not been disposed of, the same will be considered and decided expeditiously.

4. In view of the above, without expressing any opinion on the merits of the issue and
considering the facts and circumstances of the case, this writ petition is disposed of finally with a
direction to the competent authority to consider and decide petitioner's aforesaid application by a
speaking order within a period of three months from the date of production of a certified copy of
this order before him.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2016

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE MOHD. TAHIR, J.

Writ C No.- 11200 Of 2002

Shri Tulsi Smarak Samiti Rajapur & Anr. ...Petitioners
Versus
D.M. Chitrakoot & Ors. ...Respondents
5 All. Shri Tulsi Smarak Samiti Rajapur & Anr. Vs D.M. Chitrakoot & Ors.

1465
Counsel for Petitioners:
Raj Mohan Saggi

Counsel for Respondents:
C.S.C., V.S. Singh, Atiq Ahmad Khan

SOCIETIES REGISTRATION ACT - Government Servants - Participation in Private Societies -
Conduct Rules - Validity of Orders - Public Interest.

Private Society - Nature
A society registered under the Societies Registration Act, 1860, constituted with private objects and not
created by Government, remains a private body notwithstanding subsequent amendment of its bye-laws.

Government Servants - Conduct Rules
Government officials cannot, by virtue of their official designation, be inducted as office bearers or members
of the governing body of a private society, except strictly in accordance with the U.P. Government Servants
Conduct
Rules,
1956
or
the
All
India
Services
(Conduct)
Rules,
1968,
as
applicable.

Rule 13, AIS (Conduct) Rules, 1968 - Scope
Rule 13(2) merely enables a member of All India Service to undertake limited honorary or charitable activities;
it does not authorize a private body to bind a Government servant through its bye-laws or confer upon him
any position of governance.

Lack of Sanction - Consequences.
 Participation of Government servants in management of private societies without prior sanction and without
strict compliance of statutory requirements is impermissible and contrary to public interest.

Orders passed in dual capacity - Invalidity
An order passed by a Government official acting simultaneously in official capacity and as an office bearer of a
private society is vitiated and cannot be sustained in law.

Held:
Impugned orders passed by Deputy Collector acting also as Secretary of the Society are illegal and
unsustainable..

Writ petition allowed; orders quashed. No order as to costs.

Case listed

Raj Narain Vs. Smt. Indira Nehru Gandhi, reported in AIR 1972 SC 1302
Union of India Vs. Gopal Chandra Misra and others, reported in AIR 1978 SC 694
Central Inland Water Transport Corporation Ltd. Vs. Brojonath Ganguli, AIR 1986 SC 1571
Balram Gupta Vs. Union of India and another, reported in AIR 1987 SC 2354
Power Finance Corporation Ltd. Vs. Parmod Kumar Bhatia, reported in 1997 (4) SCC 280
Shambhu Murari Sinha Vs. Project and Development India and another 2000 (86) FLR 206
In Managing Director, Orissa State Handloom Weavers' Cooperative Society Ltd. Vs.
Satyanarayan Pattnaik and another, 2014 (3) SCC 218

(Delivered by Hon'ble Sudhir Agarwal, J.
1466 INDIAN LAW REPORTS ALLAHABAD SERIES
&
Hon'ble Mohd. Tahir, J.)

1. Heard Sri Raj Mohan Saggi, Advocate for petitioners and Sri Atiq Ahmad Khan as well
as learned Standing Counsel for respondents.

2. It appears that there was a Non-Government Society, namely, Tulsi Smarak Samiti
(hereinafter referred to as the "Society"), constituted sometimes in April, 1955 which included
large number of social workers, businessmen enjoying high reputation and position at relevant time
in public.

3. Initially, Sri C.B. Sharma, the then Deputy Minister (Revenue), Government of U.P.,
Lucknow, as public representative was shown as Secretary of Society. It was registered with
Assistant Registrar, Chit, Fund and Societies, U.P. Lucknow. The document forming Society clearly
shows that it was a private Society constituted at relevant time with objects to collect, promote and
propagate Tulsi Literature; to raise Memorial and Memorials at different places in sacred memory
of Tulsidas Ji; to train and educate Pracharaks, Katha Vachaks, Pandits and Vyases; and, to organize
cultural, literary, dramatic and social activities. The bye-laws also show that, any one, believe in
Society's objectives can become member of Society by subscribing requisite fee and admitted by
President of Society forming opinion that such person would help to activities of Society. There is
nothing in Society's Memorandum of Association to show that it was a Society constituted by
Government for any public purposes.

4. It appears that with passage of time bye-laws of Society were amended and Government
officials by office, namely, District Magistrate, Chitrakoot and Sub-Divisional Magistrate,
Chitrakoot, were inducted as office bearers and Members in Society.

5. We requested learned counsel for parties to address us, under which law a Government
official would be bound by bye-laws of a private society to act as its office bearer and whether such
action on the part of concerned Government official(s) would not be a misconduct under U.P.
Government Servants Conduct Rules, 1956 (hereinafter referred to as the "Rules, 1956") or if he is
a Member of All India Services, then under the provisions of All Indian Service (Conduct) Rules,
1968 (hereinafter referred to as the "Rules, 1968").

6. Sri Ram Murti Tripathi, Sub-Divisional Magistrate, Mau is present and stated that since
this practice was continuing for long, therefore, he has been functioning as Secretary of aforesaid
Society but could not dispute that as a Government official he is not bound by terms, conditions
and provisions, if any, made by any private society.

7. Sri Atiq Ahmad Khan, learned counsel appearing for respondent no. 3 contended that if
there is a Society or body undertaking honorary work of social or charitable nature or literary,
artistic or scientific character, there is no bar to a member of service from participating in the
5 All. Shri Tulsi Smarak Samiti Rajapur & Anr. Vs D.M. Chitrakoot & Ors.

1467
function of such body. He drew our attention to Rule 13(2) of Rules, 1968. We may reproduce
entire Rule 13 as under:

"13. Private trade or employment.- (1) Subject to the provisions of sub-rule (2), no
member of the Service shall except, with the previous sanction of the Government,-

(a) engage directly or indirectly in any trade or business, or

(b) negotiated for or undertake, any other employment, or

(c) hold an elective office, or canvass for a candidate or candidates for an elective
office, in any body, whether incorporated or not, or

(d) canvass in support of any business of insurance agency, commission agency etc.
owned or managed by any member of his family, or

(e) take part, except in the discharge of his official duties, in the registration,
promotion or management of any bank or other company registered or required to be registered
under the Companies Act, 1956 (1 of the 1956) or any other law for the time being in force, or of
any co-operative society for commercial purposes.

(f) Participate in, or associate himself in any manner, in the making of:-

(i) a sponsored media (including radio, television) programme; or

(ii) a media programme commissioned by Government media, but produced by an
outside agency; or

(iii) a privately produced radio or television or other media programme including a
video magazine:

provided that no previous permission shall be necessary in the case a member of the
service participates in a programme produced by the Doordarshan on a subject dealt with by him
in his official capacity.

(g) involve or engage himself in the registration, promotion, management of other
kinds of activities of any non-Governmental organization if the same is aided by the Central
Government, State Government or an international organization or agency;

(2) A member of the Service may, without the previous sanction of the Government,-

(a) undertake honorary work of a social or charitable nature, or
1468 INDIAN LAW REPORTS ALLAHABAD SERIES

(b) undertake occasional work of a literary, artistic or scientific character, or

(c) participate in sports activities as an amateur, or

(d) take part in the registration, promotion or management (not involving the
holding of an elective office) of a literary, scientific or charitable society, or of a club, or similar
organisation, the aims o objectives of which relate to promotion of sports, cultural, or recreation
activities, registered under the Societies Registration Act, 1860 (21 of 1860), or any other law for
the time being in force; or

(e) take part in the registration, promotion or management (not involving the
holding of an elective office) of a co-operative society substantially for the benefit of the members
of the Service or government servants registered under the Co-operative Societies Act, 1912 (2 of
1912), or any other law for the time being in force in any State :
 Provided that,-

(i) he shall discontinue taking part in such activities if so directed by the
Government; and

(ii) in a case falling under clause (d), or clause (e) of this sub-rule, his official duties
shall not suffer thereby and he shall, within a period of one month of his taking part in such
activity, report to the Government giving details of the nature of his participation.

(3) Every member of the Service shall, if any member of his family is engaged in a
trade or business, or owns or manages an insurance agency or commission agency, report that fact
to the Government.

(4) No member of the Service shall accept any fee for any work done for any public
body or for any private person without the sanction of the Government.

Explanation:--Fee means a recurring or non-recurring payment made, whether
directly or indirectly to a member of the Service from a source other than the Consolidated Fund of
India or the Consolidated Fund of a State, but does not include :--

(a) unearned income such as income from property, dividends and interest on
sureties; and

(b) income from literary, cultural, artistic, scientific, or technological efforts and
income from participation in sports activities as an amateur.

(5) Contesting election to sports bodies etc. :- Subject to the provisions of sub-rule
(2) of Rule 13, no member of the service shall, except with the previous sanction of the Central
Government:-
5 All. Shri Tulsi Smarak Samiti Rajapur & Anr. Vs D.M. Chitrakoot & Ors.

1469

(i) hold an elective office in any sports association/ federation/ body, by whatever name
known at State/ National level for a turn of more than 4 years or for one term, whichever is less:
provided that this restriction will not apply to functionaries like the District Magistrate, Superintendent
of Police etc. when they hold posts in ex-officio capacity at Divisional/ District/ Sub-divisional/ Taluk
levels;

(ii) canvass either for his own candidature or for any other person for holding elective
office in such sports bodies is mentioned in clause (i) above.

(iii) while canvassing for contesting elections either on his own behalf or any other
person, indulge in conduct and becoming a member of the service

(iv) shall proceed on travel abroad in connection with the work or other activities of any
sports bodies described in clause (I) above without prior cadre clearance from the Central
Government."

8. Firstly, it is sufficient to mention that a Sub-Divisional Magistrate is not governed by Rules,
1968 and there is no corresponding rule in Rules, 1956 applicable to an officer of State service and,
therefore, to justify an order passed by Sub-Divisional Magistrate, Chitrakoot with reference to Rule 13
of Rules, 1968 is clearly misconceived.

9. Further, from deeper scrutiny of Rule 13 alongwith other relevant rules we find that there is a
complete embargo to a Government servant from taking participation as Member or office bearer of a
private body except of a limited category of cases and that too with previous sanction of Government.

10. Rule 13(2) of Rules, 1968 is applicable where a member of All India Service himself
undertakes honorary, social or charitable nature of work or occasional work of literary, artistic or
scientific character. Under Rule 13(2)(d) a member of All India Service has been permitted to take part
in registration, promotion or management of a literary, scientific or charitable society or a club or similar
organization, the aims and objectives of which relate to promotion of sports, cultural or recreation
activities and registered under Societies Registration Act or any other law for the time being in force.

11. Proviso to sub-rule (2) says that in case falling under Clause (d) the concerned member of
All India Service shall report within a period of one month from taking part in such activities to
Government giving details of nature of its participation. It is an enabling provision to a member of All
India Service but nowhere authorizes a non-Government body to make rules or bye-laws in a manner so
as to entrust any position of governance to a member of All India Service and such member is not bound
by those rules or bye-laws.

12. We asked learned Standing Counsel to inform as to how a non-Government body can frame
a bye-law so as to induct a Government servant, whether in Provincial Service or Central Government
Service, so as to make him part of governing body by designation and whether such bye law would not
be against public interest. Learned counsel appearing for respondents could not answer the above query.
1470 INDIAN LAW REPORTS ALLAHABAD SERIES
13. We have also come across similar situations in respect of several private societies etc.
whereat Government officials in their official capacity function as office bearers of such private
societies and bodies though by holding Government office they cannot be a part and parcel of a private
body to function in capacity of its office bearers etc. in a general way so as to confer a veiled status and
position to such private body.

14. If any member of All India Service governed by Rules, 1968 claims protection with regard
to his participation under Rule 13(2), compliance of rule in its entirety is mandatory and it has to be
examined, whether report contemplated in proviso (ii) to Rule 13(2) is being forwarded by such
Government servant regularly or not and, if not, what action has been taken by Competent Authorities in
these matters. Let an inquiry be made by Chief Secretary, Government of U.P., Lucknow in this regard
and appropriate action be taken against all erring officials.

15. Besides, State Goverment shall also issue a general direction across the State, directing all
Government Officials that they should not be part and parcel of managing bodies of private bodies like
non-government societies, trusts etc. in whatever capacity, contrary to the provisions of Rules, 1956. In
respect of members of All India Service, Chief Secretary shall examine matter and see in how many
cases where the matter is governed by Rule 13(2), previous sanction of Government has been obtained
and if there is a case of Rule 13(2)(d) or (e) of Rules, 1968, whether there is strict compliance of proviso
(ii) or not and would take appropriate action in the matter. Chief Secretary shall submit a report in this
regard within a period of six months from today.

16. So far as present writ petition is concerned, impugned order has been passed by Deputy
Collector in his dual capacity as Deputy Collector as well as Secretary of Society, hence such order
cannot sustain.

17. In the result, writ petition is allowed. Impugned orders dated 22.11.2001 and 04.02.2002 are
hereby quashed.

18. No costs.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.05.2016

BEFORE

THE HON'BLE RITU RAJ AWASTHI, J.

Writ Petition/Service Single No.- 6176 Of 1983

Union Carbide India Ltd. & Ors. ...Petitioners
Versus
State Of U.P. & Ors. ...Respondents