# Smt. Afroz Jahan v. State of U.P. & Ors

- **Citation:** (2015) 1 ILRA 479
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-03-24
- **Case number:** C.M.W.P. No. 58619 of 2014
- **Bench:** Tarun Agarwala, Dr. Satish Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-afroz-jahan-v-state-of-u-p-ors-43202
- **Pages:** 4

## Headnote

1961-Section
9-A-Temporary
appointment of Pramukh-vacancy causedon confinement in jail-District Magistrate by
exercising power appointed petitionersubsequent removal and appointment of
respondent-3 and the respondent-4-held
illegal-after
temporary
arrangement-the
District Magistrate became functus officiounless
temporary
Pramukh
fails
to
discharge its duty-order quashed.
Held: Para-11
In the instant case, the petitioner was
discharging his duties as officiating
Pramukh. There was no occasion for the
District Magistrate to exercise further
powers under Section 9-A of the Act of
1961 since no temporary vacancy had
occurred. Merely because some members
had made a complaint against the
petitioner will not allow or justify the
District Magistrate to pass a fresh order
under Section 9-A of the Act. For removal
of the Pramukh including an officiating
Pramukh, the procedure to be followed
would be by bringing a motion of no
confidence under Section 15 of the Act.

## Text

1 All] Smt. Afroz Jahan Vs. State of U.P. & Ors.
479
learned Standing Counsel has apprised the
Court that the Government Order dated 10
July 2014 has since been withdrawn by the
Principal Secretary, Food and Civil Supplies
on 26 November 2014 and a new
Government Order has been issued.
25. The reference to the Full Bench
is answered in the aforesaid terms. The
writ petition shall now be placed before
the regular Bench in accordance with the
roster of work for disposal in the light of
this decision.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.03.2015
BEFORE
THE HON'BLE TARUN AGARWALA, J.
THE HON'BLE DR. SATISH CHANDRA, J.
C.M.W.P. No. 58619 of 2014
Smt. Afroz Jahan
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Amit Saxena
Counsel for the Respondents:
C.S.C., Sri Chandra Pal Singh, Sri Umesh
Vats.
U.P. Kshetra Panchayat & Zila Panchayat
Adhiniyam
1961-Section
9-A-Temporary
appointment of Pramukh-vacancy causedon confinement in jail-District Magistrate by
exercising power appointed petitionersubsequent removal and appointment of
respondent-3 and the respondent-4-held
illegal-after
temporary
arrangement-the
District Magistrate became functus officiounless
temporary
Pramukh
fails
to
discharge its duty-order quashed.
Held: Para-11
In the instant case, the petitioner was
discharging his duties as officiating
Pramukh. There was no occasion for the
District Magistrate to exercise further
powers under Section 9-A of the Act of
1961 since no temporary vacancy had
occurred. Merely because some members
had made a complaint against the
petitioner will not allow or justify the
District Magistrate to pass a fresh order
under Section 9-A of the Act. For removal
of the Pramukh including an officiating
Pramukh, the procedure to be followed
would be by bringing a motion of no
confidence under Section 15 of the Act.
(Delivered by Hon'ble Tarun Agarwala, J.)
1. Sri Yogendra Singh alias Bhura
was elected as the Pramukh of the Kshetra
Panchayat Dilari, District Moradabad. It
transpires that a criminal case, being Case
Crime No.142 of 2013 under Section 147,
148, 149 and 302 of the Indian Penal
Code was instituted against this Pramukh
who was, subsequently, arrested and sent
to jail. At the present moment, the said
Pramukh continues to languish in jail and
has not been bailed out on account of
which a temporary vacancy has occurred
in the office of the Pramukh and
necessary arrangement is required to be
made by the District Magistrate under
Section
9-A
of
the
U.P.
Kshetra
Panchayat
and
Zila
Panchayat
Adhiniyam, 1961 (hereinafter referred to
as the "Act").
2. The District Magistrate, in
exercise of his powers under Section 9-A
of the Act, issued an order dated
27.01.2014 appointing the petitioner, who
an elected member of the kshetra
panchayat, as an officiating Pramukh.
3. It transpires that some complaint
was given by certain members against the
480
 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner and, based on this complaint,
the District Magistrate passed a fresh
order dated 30.09.2014 removing the
petitioner from the post of officiating
Pramukh
and
appointing
the
SubDivisional Magistrate as the officiating
Pramukh. Subsequently, by another order
dated 15.10.2014 the District Magistrate
modified its order dated 30.09.2014 and
appointed Smt. Sazida Begum-respondent
no.4 as the officiating Pramukh. The
petitioner, being aggrieved by the action
of the District Magistrate in removing the
petitioner and appointing respondent no.3
and
thereafter,
respondent
no.4
as
officiating Pramukh has filed the present
writ petition.
4. We have heard Sri Amit Saxena,
the learned counsel for the petitioner, Sri
Umesh Vats, the learned counsel for
respondent no.4 and the learned Standing
Counsel for respondents no.1, 2 and 3.
5. Learned counsel for the petitioner
submitted and contended vehemently that
once the power has been exercised by the
District Magistrate under Section 9-A of
the Act, he becomes functus officio and
could not pass another order removing the
petitioner from the post of officiating
Pramukh and appointing another member
as the officiating Pramukh. It was
contended that power can only be
exercised when there is a temporary
vacancy and, in the absence of a
temporary vacancy it was not open to the
District Magistrate to exercise the powers
afresh by removing him on some
unfounded
charges
and
appointing
another member to officiate as the
Pramukh. It was further contended that
assuming without admitting that the
District Magistrate had the powers under
Section 9-A, the said order was violative
of the principles of natural justice as the
impugned order clearly indicated that he
was removed on a certain charge made by
certain members to which he was entitled
to submit a reply and be given an
opportunity of hearing, which in the
instant case had not been done.
6. On the other hand, the learned
Standing Counsel for respondents no.1, 2
and 3 and Sri Umesh Vats, the learned
counsel for respondent no.4 contended
that the District Magistrate has the power to
make arrangement as he thinks fit and, in this
regard, can change the temporary Pramukh if
he finds that such arrangement so made was
not for the benefit of the kshetra panchayat.
The learned counsel contended that the
District Magistrate has been given the power
to make temporary arrangement to appoint a
person as an officiating Pramukh under
Section 9-A of the Act where the Pramukh
was unable to discharge his functions owing
to absence, illness or any other cause and, in
view of Clause 16 of the U.P. General
Clauses Act, where a power to make the
appointment is conferred upon an authority,
such power to appoint also includes the
power to suspend or dismiss any person so
appointed in exercise of that power. It was
contended that in the light of Clause 16 of
the U.P. General Clauses Act, the District
Magistrate had the power to remove the
officiating Pramukh.
7. Having heard the learned counsel
for the parties, it would be appropriate to
have a look at Section 9-A, which was
substituted by U.P. Act No.44 of 2007.
For facility, the said provision is extracted
hereunder:
"9-A. Temporary arrangement in
certain cases. - When the Pramukh is
unable to discharge his functions owing to
1 All] Smt. Afroz Jahan Vs. State of U.P. & Ors.
481
absence, illness or any other cause, the
District Magistrate may, by order, make
such arrangement, as he thinks fit, for
discharge of the functions of the Pramukh
until the date on which the Pramukh
resumes his duties."
8. From a perusal of the aforesaid
provision, it is apparently clear that where
the Pramukh is unable to discharge his
functions owing to absence, illness or any
other cause, the District Magistrate would
make such arrangement as he thinks fit
for the discharge of the functions of the
Pramukh until the date on which the
Pramukh resumes his duty. The said
provision makes it apparently clear and
explicit without any room for doubt that
the District Magistrate has been conferred
the power only when a temporary vacancy
on the post of Pramukh arises and that
such power cannot be exercised where
such temporary vacancy is not available.
9. In the instant case, the Pramukh
was
arrested
and
sent
to
jail.
Consequently, the said Pramukh could not
discharge the functions of the Pramukh
and the work of the kshetra panchayat
was suffering. Therefore, a temporary
vacancy arose and the District Magistrate
was justified in exercising the powers and
make such arrangement as he thought fit
for the discharge of the functions of the
Pramukh by appointing the petitioner to
officiate as the Pramukh.
10. In our view, once this power has
been exercised the District Magistrate
becomes functus officio and could not
pass any further order, inasmuch as the
said temporary vacancy gets filled up. In
the event, the temporary Pramukh failed
to discharge his functions owing to
absence, illness or any other cause, in that
scenario, the District Magistrate gets fresh
powers to order and make arrangement as
he thinks fit for the discharge of the
functions of the Pramukh and not
otherwise.
11. In the instant case, the petitioner
was discharging his duties as officiating
Pramukh. There was no occasion for the
District Magistrate to exercise further
powers under Section 9-A of the Act of
1961 since no temporary vacancy had
occurred. Merely because some members
had made a complaint against the
petitioner will not allow or justify the
District Magistrate to pass a fresh order
under Section 9-A of the Act. For removal
of the Pramukh including an officiating
Pramukh, the procedure to be followed
would be by bringing a motion of no
confidence under Section 15 of the Act.
12. Clause 16 of the U.P. General
Clauses Act will not be applicable,
inasmuch as the said power can only be
exercised, if no different intention appears
under the Act. The Act gives power to the
District Magistrate to make temporary
arrangements. The power to remove a
Pramukh lies with the members of the
kshetra panchayat by bringing a motion of
no confidence against the Pramukh under
Section 15 of the Act.
13. Consequently, we are of the
opinion that the District Magistrate is
denuded of his powers for removal of an
officiating Pramukh appointed by him
under Section 9-A of the Act.
14. In view of the aforesaid, the
District
Magistrate
becomes
functus
officio the moment he passes an order
under Section 9-A of the Act and that the
District Magistrate can exercise his
482
 INDIAN LAW REPORTS ALLAHABAD SERIES
powers afresh when another temporary
vacancy occurs.
15. The respondents concede that
the District Magistrate could not have
appointed a Sub-Divisional Magistrate
and that only a member of the kshetra
panchayat could be appointed as a
temporary Pramukh as held by a Division
Bench of this Court in Smt. Mamta
Kanaujia and others Vs. State of U.P. and
others, 2009 (3) ALJ 339.
16. In the light of the aforesaid, the
impugned orders dated 30.9.2014 and
15.10.2014 cannot be sustained and are
quashed.
17. The writ petition is allowed. The
District Magistrate is directed to give the
charge of officiating Pramukh to the
petitioner forthwith.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.02.2015
BEFORE
THE HON'BLE YASHWANT VARMA, J.
Writ-A No. 60741 of 2010
Along with Writ-A No. 61524 of 2010,
Writ-A No. 66305 of 2010, Writ-A No.
61529 of 2010
Hansraj Singh & Ors.
 ...Petitioners
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioners:
Sri M.K. Mishra
Counsel for the Respondents:
C.S.C.
Constitution of India, Art.-226-Recovery
of excess amount-wrongly paid towards
promotional pay-petitioners working as
Tube well operator-given promotional
pay w.e.f. 1990-while in 2006 after
retirement-tress out wrong done in
fixation-instead of 1994-benefit given
from
1990-held-petitioner
not
being
instrumental in getting excess amount-in
view
of
contingencies
contained
in
judgment of Apex Court in Rafiq Masih
case-recovery not proper.
Held: Para-20
If there were possibility of any doubt
being entertained with regard to the
basic
proposition
with
respect
to
recovery of amounts paid by mistake to
employees, the same has been accorded
a quietus by the above pronouncement
of the Apex Court.
Case Law discussed:
(2004) 2 ESC, 791; 2011 (5) ESC 3035; 2014
(8) SCC 883; Civil Appeal No. 11527 of 2014 .
(Delivered by Hon'ble Yashwant Varma, J.)
1. Heard Shri M.K. Mishra, learned
counsel for the petitioners and Shri H.C.
Pathak,
learned
Standing
Counsel
appearing for the contesting respondents.
2. The parties are agreed that all
these four connected writ petitions
involve the same controversy and stem
from similar orders of recovery of pay
made against the petitioners. Accordingly,
and with their consent all these writ
petitions are being disposed of by this
common judgment.
3. Arguments have been advanced
by the learned counsel for the parties
treating Writ Petition No.60741 of 2010,
to be the leading writ petition. However,
it would be appropriate to briefly notice
the facts of each case.
Writ Petition No.60741 of 2010.