# Smt. Abha Singh v. The State of U.P. & Ors. 144 INDIAN LAW REPORTS

- **Citation:** (2020) 9 ILRA 143
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2017-09-13
- **Case number:** Writ A No. 55658 of 2004
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-abha-singh-v-the-state-of-u-p-ors-144-indian-law-reports-45344
- **Pages:** 9

## Headnote

A. Service Law U.P. Basic Education Act,
1972 - Uttar Pradesh Junior High Schools
(Payment of Salaries of Teachers and
Other Employees) Act, 1978 - Section 10 -
U.P. Recognized Basic Schools (Junior
High Schools) Recruitment and Conditions
of Service of Teachers) Rules, 1978 -
Rules 4, 5 - Payment of salary -Whenever
a
person
claims
salary
from
State
Exchequer, it is obligation upon such
person to prove that he has been validly
appointed on the post in question and,
therefore, entitled to salary. (Para 16)

For a valid appointment to the post of Teacher
in a recognized Junior High School one must
possess
requisite
minimum
qualification
prescribed in Rule 4 and payment of salary shall
be
liability
of
State
Government.
S.10
contemplates a valid appointment in the eyes of
law before making State Government liable for
payment of salary. (Para 12)

B.
Service
Law
-
Appointment
-
Appointment of a person who does not
possess requisite qualification prescribed
under Statute is void ab-initio. It is illegal
since inception. It does not confer any
right upon such person to hold the post.
(Para 18)

Petitioner did not dispute those qualifications
namely, B.T.C., C.T., J.T.C. and H.T.C. or
equivalent qualifications would not include L.T.,
therefore, it cannot be said that petitioner
possessed
requisite
minimum
qualification
prescribed in Rule-4 of Rules, 1978 and without
such appointment, Rule-5 put a complete
embargo on appointment of any person on the
post of Assistant Teacher in a Junior High
School. (Para 17)

Writ Petition dismissed. (E-4)

Precedent followed:

## Text

9 All. Smt. Abha Singh Vs. The State of U.P. & Ors.
143
thoroughly misconceived and rather in the
nature of a review of its earlier judgment and
order dated 28.08.2009 passed in another
claim proceeding. Once the Tribunal in the
previous proceedings, while passing the order
dated 28.08.2009 had quashed the penalty
order dated 22.04.1991 nothing remained to be
remitted to the appellate authority as any
pending appeal before the appellate authority
would have as a consequence become
infructuous once the punishment order itself
stood quashed. May be the petitioner who is
appearing in person had not challenged the
proceedings before the appellate authority that
would not validate the order of the appellate
authority which was otherwise illegal and a
nullity. So far as the applicability of the
provisions of Rule 129 of the P & T Manual,
Volume-III to the proceedings before Kendriya
Vidyalaya Sangthan is concerned, we are
satisfied that the said rule has no application to
Kendriya Vidyalaya Sangthan, which is
governed by its own rules and regulations and
the Central Civil Services (Classification,
Control and Appeal) Rules, 1965.

14. We in fact note that the department
had never approached the High Court
challenging the order dated 28.08.2009 nor did
it file any application for review or for
clarification of the said order with regard to the
quashing of the punishment order dated
22.04.1991. The respondents also in their
counter affidavit have not disclosed what was
the nature of the charges against the petitioner
which resulted in his dismissal from service.
The charge sheet has not been filed with the
counter affidavit nor has any enquiry report
been placed before us. We find that the matter
has been travelling in and out of the portals of
the Tribunal and of this Court since 1991 and
the petitioner is now 64 years of age has also
retired from service and that it would not serve
the ends of justice to remit the matter back to
the disciplinary authority. Even otherwise, as
already noted above, the previous order of the
Tribunal was never put to challenge by the
respondents, therefore our considered view is
that the matter should be given a quietus now.

15. We, therefore find that the order
of the Central Administrative Tribunal,
Allahabad dated 13.09.2017 is wholly
illegal and without jurisdiction and the
same is accordingly quashed.

16. We also find that since the penalty
order dated 22.04.1991 had itself been set
aside
by
the
Tribunal
in
previous
proceedings and thereafter there were no
proceedings pending before the Tribunal
nor was any direction given to proceed
afresh in the departmental proceedings at
any stage the petitioner who has long
retired and cannot be reinstated in service,
will
nevertheless
be
entitled
for
regularization of the period he was under
suspension with all consequential benefits.
The respondents shall settle all the
consequential benefits, financial benefits
and retiral dues of the petitioner within a
period of four months from the date of
receipt of the certified copy of this order.

17. The writ petition stands allowed.

18. There shall be no order as to cost.
----------
(2020)09ILR A143
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.11.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Writ A No. 55658 of 2004

Smt. Abha Singh ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents
144 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Sri Radha Kant Ojha, Sri Shailendra Kumar
Sharma, Sri A.R. Dwivedi

Counsel for the Respondents:
C.S.C., Sri P.K. Bhardwaj, Sri Umesh Vats

A. Service Law U.P. Basic Education Act,
1972 - Uttar Pradesh Junior High Schools
(Payment of Salaries of Teachers and
Other Employees) Act, 1978 - Section 10 -
U.P. Recognized Basic Schools (Junior
High Schools) Recruitment and Conditions
of Service of Teachers) Rules, 1978 -
Rules 4, 5 - Payment of salary -Whenever
a
person
claims
salary
from
State
Exchequer, it is obligation upon such
person to prove that he has been validly
appointed on the post in question and,
therefore, entitled to salary. (Para 16)

For a valid appointment to the post of Teacher
in a recognized Junior High School one must
possess
requisite
minimum
qualification
prescribed in Rule 4 and payment of salary shall
be
liability
of
State
Government.
S.10
contemplates a valid appointment in the eyes of
law before making State Government liable for
payment of salary. (Para 12)

B.
Service
Law
-
Appointment
-
Appointment of a person who does not
possess requisite qualification prescribed
under Statute is void ab-initio. It is illegal
since inception. It does not confer any
right upon such person to hold the post.
(Para 18)

Petitioner did not dispute those qualifications
namely, B.T.C., C.T., J.T.C. and H.T.C. or
equivalent qualifications would not include L.T.,
therefore, it cannot be said that petitioner
possessed
requisite
minimum
qualification
prescribed in Rule-4 of Rules, 1978 and without
such appointment, Rule-5 put a complete
embargo on appointment of any person on the
post of Assistant Teacher in a Junior High
School. (Para 17)

Writ Petition dismissed. (E-4)

Precedent followed:
1. Pramod Kumar Vs U.P. Secondary Education
Services Commission & ors., (2008) 7 SCC 153
(Para 16, 20)

2. Mohd. Sartaj & anr. Vs St. of U.P. & ors.,
(2006) 2 SCC 315 (Para 21)

3. Rakesh Kumar Sharma Vs Govt. of NCT of
Delhi & ors., (2013) 11 SCC 58 (Para 25)

4. St. of U.P. & ors. Vs Anand Kumar Yadav &
ors., (2017) 8 SCALE 220 (Para 26)

5. Ashok Kumar Sonkar Vs U.O.I. & ors, (2007)
4 SCC 54 (Para 27)

Precedent distinguished:

1. Committee of Management Vs St. of U.P.,
(2009) 1 UPLBEC 381 (Para 22)

Present petition challenges order dated
20.06.2013,
passed
by
District
Basic
Education Officer, Jaunpur.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Radha Kant Ojha,
learned Senior Advocate assisted by Sri
Shailendra Kumar Sharma, learned counsel
for petitioner, learned Standing Counsel for
respondents- 1 to 4 and Sri Umesh Vats,
learned counsel for respondent-5.

2. This writ petition under Article 226
of Constitution of India has been filed by
sole petitioner Smt. Abha Singh being
aggrieved by order dated 20.06.2013
(Annexure-19 to the writ petition) passed
by
District
Basic
Education
Officer,
Jaunpur
(hereinafter
referred
to
as
"DBEO") i.e. respondent-3 holding that
petitioner
did
not
possess
minimum
qualification on the post of Assistant
Teacher in a Junior High School on the date
of her appointment, hence, her appointment
is patently illegal and approval granted to
her appointment on 27.01.2003 stands
9 All. Smt. Abha Singh Vs. The State of U.P. & Ors.
145
cancelled. Petitioner has also prayed for
issue of a writ of mandamus directing
respondents to pay her salary as and when
it falls due.

3. Facts, in brief, giving rise to
present writ petition are that Naraini Devi
Girls
Junior
High
School,
Dhanuha
Rampur,
District
Jaunpur
(hereinafter
referred to as "School") is a recognized
Junior High School by Uttar Pradesh Board
of Basic Education (hereinafter referred to
as "Basic Board") and is governed by the
provisions of U.P. Basic Education Act,
1972 (hereinafter referred to as "Act,
1972"). School is also in grant-in-aid list
and for the purpose of payment of salary to
teaching and non-teaching staff, it is
governed by Uttar Pradesh Junior High
Schools (Payment of Salaries of Teachers
and
Other
Employees)
Act,
1978
(hereinafter referred to as "Act, 1978").
Terms and conditions of recruitment and
appointment of Teachers of Junior High
School are governed by U.P. Recognized
Basic Schools (Junior High Schools)
(Recruitment and Conditions of Service of
Teachers) Rules, 1978 (hereinafter referred
to as the "Rules, 1978").

4. School had nine sanctioned posts
comprising of one Head Mistress, four
Assistant Teachers, one Clerk and three
Class-IV employees. One post of Assistant
Teacher fell vacant on 30.01.1998 since
incumbent, holding the post, was appointed
as Head Mistress. Management of School
sent a letter dated 07.12.2000 requesting
DBEO to grant permission to fill in
substantive vacancy on the post of
Assistant Teacher. Said permission was
granted by DBEO vide letter dated
05.03.2001. Vacancy was advertised and
put on notice board by Management of
School on 08.03.2001 inviting applications
of eligible persons. Petitioner applied. She
and four others were interviewed by
Selection Committee who placed petitioner
at Serial No.1 in merit list. Qualifications
possessed by petitioner are High School
(1978), Intermediate (1980), Bachelor of
Arts (1982), Master of Art (1984) and
Licentiates Teacher (1998). Ultimately,
letter of appointment was issued to
petitioner on 08.05.2001 appointing her as
Assistant Teacher in the School. Petitioner
joined
on
10.05.2001.
Aforesaid
appointment was also approved by DBEO
vide letter dated 27.01.2003 (Annexure-12
to the writ petition). Petitioner also
received salary as Assistant Teacher from
27.01.2003 to January, 2004. A letter was
issued by Regional Director of Education
(Basic) on 20.05.2004 that no payment of
salary to the Teachers be made who are
appointed newly after 20.01.2003. Pursuant
thereto, salary of petitioner was stopped.
Whereagainst, she moved representation
dated 05.10.2004 and 16.10.2004 and
thereafter filed present writ petition.

5. This writ petition was entertained
on 23.12.2004 when this Court passed
following interim order:-

"Learned standing Counsel has
accepted notice on behalf of respondents
no.1 to 4.

Issue notice to respondent no.5.

Each one of the respondents is
granted six weeks time to file counter
affidavit. Rejoinder affidavit may be filed
within two weeks thereafter.

List this petition on 14.2.2005
alongwith the record of Civil Misc. Writ
Petition No.37312 of 2004 and 45562 of
2004.

Till the next date of listing
operation of the order dated 11.6.2004
passed by respondent no.2 shall remain
146 INDIAN LAW REPORTS ALLAHABAD SERIES
stayed, in respect to petitioner. However,
this Court has not stayed enquiry, which
would be
undertaken and
same
be
concluded in accordance with law."

6. Writ Petition No.45562 of 2004 has
been dismissed as withdrawn vide Court's
order dated 01.07.2014. Writ Petition No.
37312 of 2004 has been decided along with
four other connected writ petitions led by
Writ Petition No.11130 of 2014, Shiv
Baran Shukla vs. State of U.P. and others,
vide judgement dated 17.07.2017 and said
order reads as under:-

"Five writ petitions have come
connected together and it has been
informed by Sri V.K. Singh that with regard
to the same institutions, the matter has
been referred to Secretary, Basic Education
by an order dated 19.10.2011 passed in
Writ-A No. 58736 of 2011 to consider and
decide in accordance with law and
secondly by order passed in a Public
Interest Litigation on 23.6.2017 filed by
Jitendra Kumar Goyal & another, namely
Public interest Litigation No. 27796 of
2017 again to the Secretary, Basic
Education to consider all aspects of the
matter with regard to sanctioning of posts,
students strength, mode of recruitment etc.
of respondent nos. 5 to 11 therein, who are
said to be teachers of the institution
concerned, getting salary without due
approval by the Competent Authority.

It has been submitted that these
writ petitions may be disposed of with a
direction to the Secretary, Basic Education
to look into the matter and decide along
with the matter of respondent nos. 5 to 11,
who have been mentioned in Public Interest
Litigation No. 27796 of 2017 to be drawing
salary from the public exchequer without
due approval by the Competent Authority.

All these writ petitions are
therefore disposed of, without entering into
the merits of the case, with a direction to
the Secretary, Basic Education to look into
all records of the writ petitions filed by
teachers of this institution in the past and
orders passed by this Court in all such writ
petitions whether pending or decided
including detailed examination of the facts
mentioned in the affidavits filed by the State
respondents
and
the
Committee
of
Management in these writ petitions and
pass appropriate orders in accordance with
law.

The Secretary, Basic Education
shall give opportunity of hearing to the
Basic Shiksha Adhikari, Jaunpur as well as
to the Committee of Management of the
Institution concerned and all teachers
whose appointments have been shown to be
doubtful in Public Interest Litigation No.
27796 of 2017 and also in these writ
petitions, namely Writ Petition Nos. 11130
of 2014, 6203 of 2014, 14066 of 2001,
48434 of 2004 and 37312 of 2004.

This order has been passed with
the due assistance of Sri Mrigraj Singh,
Advocate, who appears for the Public
Interest Litigation."

7. Pursuant to order dated 23.12.2004
passed in present writ petition, DBEO
made
enquiry
into
the
validity
of
appointment of petitioner and found that
she did not possess requisite minimum
qualification
of
training,
hence,
her
appointment is patently illegal and void ab
initio and approval granted on 27.01.2003
has been cancelled.

8. Learned Senior Counsel appearing
for
petitioner
did
not
dispute
that
appointment of Assistant Teacher in a
Junior High School is governed by Rules,
1978.
9 All. Smt. Abha Singh Vs. The State of U.P. & Ors.
147

9. Thus, the first question up for
consideration is "whether petitioner at the
time of appointment possess requisite
minimum
qualification
for
valid
appointment as Assistant Teacher in a
Junior High School ?"

10. Rules 4 and 5 of Rules, 1978 read
as under:

"4. Minimum qualification.- (1)
The minimum qualification for the post of
Assistant teacher of a recognised school
shall be Intermediate Examination of the
Board of High School and Intermediate
Education, Uttar Pradesh or equivalent
examination with Hindi and Teacher's
training Course recognised by State
Government
or
a
Board
such
as
Hindustani Teaching Certificate, Junior
Teaching Certificate,
Basic
Teaching
Certificate or Certificate of Training.

(2) The minimum qualifications
for the appointment to the post of
Headmaster of a recognised school shall be
as follows:

(a) A degree from a recognised
University or an equivalent examination
recognised as such;

(b) A teacher's training course
recognised by the State Government or the
Board, such as Hindustani Teaching
Certificate, Junior Teaching Certificate,
Certificate of Training or Basic Teaching
Certificate; and

(c)
Three
years'
teaching
experience in a recognised school."

"5. Eligibility for appointment.--
No
person
shall
be
appointed
as
Headmaster or Assistant Teacher in
substantive capacity in any recognised
school unless-

(a) he possesses the minimum
qualifications prescribed for such post;

(b) he is recommended for such
appointment by the Selection Committee."
 (Emphasis Added)

11. Rules, 1978 do not possess any
provision
empowering
any
authority,
whatsoever, to relax minimum qualification
prescribed therein for appointment of a
Teacher in a recognised school.

12. From the perusal of Rules, 1978
and Act, 1978 and in particular Rules 4 and
5 and Section 10, it is evident that for a
valid appointment to the post of Teacher in
a recognised Junior High School one must
possess requisite minimum qualification
prescribed in Rule 4 and salary for payment
of such a Teacher of a recognised Junior
High School shall be liability of State
Government. Section 10 of Act, 1978,
therefore, it also contemplates a valid
appointment in the eyes of law before
making
State
Government
liable
for
payment of salary to such a Teacher of a
recognised Junior High School.

13. Learned Senior Counsel appearing
for petitioner did not dispute that petitioner
lacks
requisite
minimum
training
qualification prescribed in Rules, 1978 and
also could not dispute that L.T. Training
qualification is not equivalent to training
qualification mentioned in Rule-4 of Rules,
1978 but it is a training qualification for
Secondary Classes. However, he submits
that having been appointed since January,
2003, petitioner worked continuously till
December, 2004 when present writ petition
was filed and thereafter pursuant to interim
order dated 23.12.2004 and that being so,
her appointment now should not be
disturbed after such a long time.

14. I will consider this aspect a little
bit later but first of all, I decide the
148 INDIAN LAW REPORTS ALLAHABAD SERIES
question with regard to lack of requisite
minimum qualification and its effect on
petitioner's appointment.

15. This question has to be examined
in the light of the fact that petitioner has
sought a writ of mandamus commanding
respondents for payment of salary from
State Exchequer and for asserting her right,
petitioner is under an obligation to show
that she was validly appointed on the post
on which she is claiming salary.

16. This could not be disputed by
learned counsels for parties that whenever a
person claims salary from State Exchequer,
it is obligation upon such person to prove
that he has been validly appointed on the
post in question and, therefore, entitled to
salary. In Pramod Kumar Vs. U.P.
Secondary
Education
Services
Commission and others, 2008(7) SCC
153 considering a similar question, Court
held as under:

"The appellant, however, has
filed a writ application for issuance of or
in the nature of a writ of mandamus. He,
therefore, must establish existence of a
legal right in himself and a corresponding
legal duty in the State. If he did not
possess the requisite qualification to hold
a post, he could not have any legal right to
continue. It was, therefore, immaterial as
to why and when the said proceeding had
been initiated against him"

(Emphasis Added)

17. Since learned Senior Counsel for
petitioner did not dispute that qualifications
namely, B.T.C., C.T., J.T.C. and H.T.C. or
equivalent qualifications would not include
L.T., therefore, it cannot be said that
petitioner possessed requisite minimum
qualification prescribed in Rule-4 of Rules,
1978 and without such appointment, Rule-5
put a complete embargo on appointment of
any person on the post of Assistant Teacher
in a Junior High School.

18. Appointment of a person who
does not possess requisite qualification
prescribed under Statute is void ab-initio. It
is illegal since inception. It does not confer
any right upon such person to hold the post.

19. If there is a provision in the
statute which empowers the authorities to
relax qualification prescribed in the statute
and authority exercising such power, make
appointment, or, depending upon the
language of statute, if appointing authority
has made appointment in anticipation of
relaxation of qualification prescribed in the
rules where power of relaxation is vested
elsewhere and ultimately such relaxation is
granted, position may be different but when
statute does not talk of any such relaxation
and there is no such power, yet, if an
appointment is made in violation of rules or
statute prescribing a particular qualification
for appointment to a particular post, such
appointment would be a nullity.

20. In Pramod Kumar (supra) Court
has clearly said in para 16 and 18 of the
judgement as under:

"16.
The
qualifications
for
holding a post have been laid down under a
statute. Any appointment in violation
thereof would be a nullity."

"18. If the essential educational
qualification for recruitment to a post is
not satisfied, ordinarily the same cannot
be condoned. Such an act cannot be
ratified. An appointment which is contrary
to the statute/statutory rules would be void
in law. An illegality cannot be regularized,
9 All. Smt. Abha Singh Vs. The State of U.P. & Ors.
149
particularly, when the statute in no
unmistakable term says so. Only an
irregularity can be."

(Emphasis Added)

21. Earlier also a similar controversy
came up for consideration in Mohd. Sartaj
and another Vs. State of U.P. and others,
2006(2) SCC 315 and in paragraphs 11, 19
and 21 of the judgement, Court held as
under:

"11. ... Thus under the Rules, the
basic qualification for the post of Assistant
Teacher,
apart
from
the
educational
qualification,
was
the
training
qualification of the Basic Teacher's
Certificate
or
Hindustani
Teacher's
Certificate or Junior Teacher's Certificate
or Certificate of Teaching or equivalent
training course recognized by the State
Government. It is an admitted position by
both the parties that these qualifications
are required for appointment to the post of
Assistant Teacher. It is also not the case of
the
appellants
that
the
academic
qualifications were amended at the time of
their appointment. Thus, admittedly on the
date of appointment, the appellants did not
hold the training qualification to be
appointed to the post of Assistant Teachers
as prescribed under Rule 8."

"19. In the present case, the
appellants' case fall within the exception
laid down in S.L. Kapoor's case (supra)
and other supporting cases, as admittedly,
the appellants were not qualified and they
did not possess the B.T.C. or Hindustani
Teacher's Certificate or Junior Teacher's
Certificate or Certificate of Teaching or
certificate of any other training course
recognized by the State Government as
equivalent thereto at the time of their
initial appointment. In view of the basic
lack of qualifications, they could not have
been appointed nor their appointment
could have been continued. Hence the
appellants did not hold any right over the
post and therefore no hearing was required
before the cancellation of their services."

"21. It is settled law that the
qualification should have been seen which
the candidate possessed on the date of
recruitment and not at a later stage unless
rules to that regard permit it. The minimum
qualification prescribed under Rule 8
should be fulfilled on the date of
recruitment. Equivalence of degree of
Moallium-e-Urdu, Jamia Urdu Aligarh with
that of B.T.C. in the year 1994 would not
entail the benefit to the appellants on the
date they were appointed."

(Emphasis Added)

22. Learned counsel for petitioner
then contended that similar view taken by
this Court in Committee of Management
Vs. State of U.P. (2009) 1 UPLBEC 381
has been considered by Supreme Court in
appeal and it has observed that teachers
working be not disturbed. I find that in the
above
case,
Teachers
possessed
qualification of B.Ed. It was not found
equivalent
to
teaching
qualification
required under Rules. Therefore, judgment
of learned Single Judge was set aside by
Division Bench of this Court and appeal of
Committee of Management was allowed. It
was
declared
that
appointment
of
petitioners was a nullity. In appeal,
preferred before Supreme Court, i.e.,
Special Leave to Appeal (C) No. 14907 of
2009 decided on 14.07.2017, Supreme
Court passed following order:

"Heard learned counsel for the
parties.
150 INDIAN LAW REPORTS ALLAHABAD SERIES

Having regard to the fact that the
petitioners have been in service for a long
period, we are of the view that their
appointments ought not be disturbed only
on the ground of alleged lack of
qualification which is contested by the
petitioners.

Accordingly, the special leave
petitions are disposed of by directing that
the services of the petitioners be not
disturbed on the above grounds.

Pending applications(s), if any,
shall also stand disposed of."

(Emphasis Added)

23. Court did not find anything wrong
in the judgment of this Court but exercising
its powers under Constitution i.e. Article
142, and giving due weight to the fact that
petitioners in those cases were working for
long period and also contested the issue
whether
they
possessed
requisite
qualification, it passed an order that their
appointments be not disturbed on the
ground of lack of qualification which was
contested by petitioners and appeal was
disposed of. Judgment of Division Bench
of this Court has not been set aside.

24. Be that as it may, so far as this
Court is concerned, when it is found that a
person
lacks
requisite
qualification
prescribed under the Rules, and Rules,
specifically prohibit appointment of a
person, who does not possess requisite
qualification, this Court cannot decide a
matter in the teeth of Rules and contrary to
Rules and cannot allow a person to
continue despite otherwise provided in the
Rules. This Court is under an obligation of
upholding Rule of law and not to be
governed by its own whims and caprices.

25. In Rakesh Kumar Sharma Vs.
Govt. of NCT of Delhi and Ors. (2013) 11
SCC 58, Court said :

"There is no obligation on the
court to protect an illegal appointment.
Extraordinary power of the court should be
used only in an appropriate case to
advance the cause of justice and not to
defeat the rights of others or create
arbitrariness. Usurpation of a post by an
ineligible candidate in any circumstance is
impermissible."

26. In State of Uttar Pradesh & Ors.
Vs. Anand Kumar Yadav & Ors. 2017 (8)
SCALE 220, Supreme Court affirmed
judgment of this Court holding that
essential qualification must be held by the
person on the date of entering into service
and experience gained by such persons can
never be construed as a substitute for an
essential qualification that is statutorily
prescribed.

27. In Ashok Kumar Sonkar Vs.
Union of India and others (2007) 4 SCC
54, Court said :

"Indisputably,
the
appellant
herein
did
not
hold
the
requisite
qualification as on the said cut-off date. He
was, therefore, not eligible therefore."

28. In view thereof, I do not find that
any relief in extraordinary and equitable
jurisdiction
under
Article
226
of
Constitution of India can be granted.

29. Writ petition lacks merit.
Dismissed.

30. Interim order, if any, stands
vacated.
----------
9 All. Mohd. Farook Vs. Union of India
151
(2020)09ILR A151
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.09.2020

BEFORE

THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Misc. Bail Application No. 16668 of 2020

Mohd. Farook ...Applicant(In Jail)
Versus
Union of India ...Opposite Party

Counsel for the Applicant:
Sri
Dileep
Kumar
Srivastava,
Sri
Mohammad Waseem

Counsel for the Opposite Party:
Sri Krishna Agarawal

Civil Law - The Customs Act, 1962- Section
108-Statement
of
the
accused
-
Is
admissible in evidence- The statement
recorded under Section 108 of the Act is
admissible as evidence.

In view of the law settled by the Supreme
Court, the statement of the accused u/s 108 of
the Customs act is admissible in evidence.

Civil Law - The Customs Act, 1962 -
Section 135 - Is a non-bailable offence.

Sections 104 (6) (c) and 104 (6) (d) of the Act,
1962 of the Act provide that the offence u/s 135
of the Act shall be non-bailable, as also held by
the High Court in the case of Mahendra Soni Vs.
State of U.P. passed in Criminal Misc. Bail
Application No.33313 of 2019.

Bail Application rejected. (Para 6, 8) (E-3)

Case law relied upon/ Discussed: -

1. Om Prakash Bhatia Vs Commissioner of
Customs, Delhi AIR 200 SC 581

2. Mahendra Soni Vs St. of U.P., Crl Misc. Bail
Appl. No.33313 of 2019
(Delivered by Hon'ble Gautam Chowdhary, J.)

1. This application has been filed
seeking the release of the applicant on bail
in Case Crime No. Nil of 2020, u/s 135 of
Customs Act, 1962, Police Station- D.R.I.
Varanasi
(Directorate
of
Revenue
Intelligence), District- Varanasi.

2. Heard learned counsel for the
applicant and learned A.G.A. Perused the
record.

3. Submission of counsel for the
applicant
is
that
the
applicant
was
travelling from Guwahati to Kanpur and he
was arrested from Pandit Deendayal
Upadhyay Railway Station (Mughalsarai).
Submission is that there is no evidence on
record that the alleged gold biscuits
(3652.270
gms.
amounting
Rs.1,42,07,330/) were smuggled by the
applicant as the real owner of the said
article is one D.K. Khan and the applicant
was only carrying the said biscuits from
Guwahati to Kanpur. Further submission is
that the statement of the applicant allegedly
recorded by the officials of Customs
Department under section 108 of the
Customs Act, 1962 is not volunteer
statement of the applicant and the same was
obtained by coercion.

4. Shri Krishna Agarawal, learned
counsel for the opposite party has opposed
the prayer for bail and has submitted that as
the applicant could not show any relevant
paper regarding the article (gold) obtained
from the possession of the applicant of such
quantity, it is deemed proper that the said
material was being smuggled. Learned
counsel in this regard has also placed
reliance upon several judgments of Hon'ble
Supreme Court which are held as under:-