# Smt. Asha Devi v. Prescribed Authority/ Sub Divisional Magistrate & Ors

- **Citation:** (2024) 7 ILRA 285
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-08
- **Case number:** Writ C No. 14461 of 2024
- **Bench:** Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-asha-devi-v-prescribed-authority-sub-divisional-magistrate-ors-52255
- **Pages:** 12

## Headnote

(A) Election Law - U.P. Panchayat Raj
Act,1947 - Section 12 C - Application for
questioning the elections - Section 12 (6)
- Revision - Prescribed Authority on finally
deciding an election petition becomes
functus officio and cannot pass any order
subsequent thereto even if the election
petition has been decided finally calling
for the re-counting of votes - Election
Tribunal
become
functus
offico
after
pronouncement of its decision on the
election petition - The Act, 1947 does not
allow the Prescribed Authority to reentertain an already decided election
petition, modify an order, or pass a fresh
order. (Para - 11,15,16)

(B) Words and Phrases - "Functus Officio"
- any judge or quasi-judicial authority
would be considered as functus officio in
the eventuality that he/she has performed
his/her duty finally in its official capacity
and
nothing
remains
to
be
decided/considered/revisit on the said
subject matter unless there is a legal
provision to do so.(Para - 7)

(C) Words and Phrases - Principle of
finality - Principle of finality is attached to
the doctrine of functus officio, but there
are exceptions to the principle of finality -
Fraud as is a genuine, albeit limited,
exceptions to the important principle of
finality of litigation.(Para - 9)

Prescribed authority allowed election petition
partly - without fixing any date for the further
proceedings in the election petition -issued
direction for recounting of ballot papers -
inherent lack of jurisdiction to pass subsequent
order - considered final outcome of recounting -
again allowed same election petition finally -
declared respondent as a returned candidate.
(Para - 6,16)

HELD: - Prescribed Authority's decision to
partially allow the election petition without a
final decision has made it functus officio and has
no jurisdiction to entertain the petition again.
286 INDIAN LAW REPORTS ALLAHABAD SERIES
Prescribed Authority's order dated 21.3.2024,
which was seized by the revisional court, was
erroneous and perverse to the provisions of the
Act, 1947. Order was illegal, unwarranted, and
cryptic, warranting the court's exercise of its
extraordinary jurisdiction under Article 226 of
the Constitution of India. Impugned order
quashed.
Petitioner's
revision
pending
consideration in the revisional court, which is
expected to make a lawful decision as soon as
possible. (Para - 16,17)

Petition allowed. (E-7)

List of Cases cited:

## Text

7 All. Smt. Asha Devi Vs. Prescribed Authority/Sub Divisional Magistrate & Ors.
285
the petitioners under Section 25(1)(d) of
the Societies Registration Act, 1860.

46. Since the petitioners against the
impugned order dated 30.3.2024 had
approached this Court by filing this writ
petition on 13.4.2024 and this writ petition
remained pending for a quite some time
therefore, it is provided that if petitioners
file the statutory appeal under Section
25(1)(d) of the Act of 1860 within three
weeks from today, the appellate authority
shall hear and decide the appeal on merits
and shall make endeavour to decide the
appeal within three months from the date of
its filing.

47. Since during pendency of this writ
petition, pursuant to the impugned order
dated 30.3.2024 elections of the Committee
of Management of the Society have already
taken place therefore, the elections held
pursuant to the order dated 30.3.2024 shall
abide by the decision in the appeal.
----------
(2024) 7 ILRA 285
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.07.2024

BEFORE

THE HON'BLE DINESH PATHAK, J.

Writ C No. 14461 of 2024

Smt. Asha Devi ...Petitioner
Versus
Prescribed
Authority/
Sub
Divisional
Magistrate & Ors. ...Respondents

Counsel for the Petitioner:
Sri Bhagwan Dutt Pandey, Sri Girja Shanker
Sen

Counsel for the Respondents:
Sri Bheshraj Puri, C.S.C., Sri Sarvesh
Pandey

(A) Election Law - U.P. Panchayat Raj
Act,1947 - Section 12 C - Application for
questioning the elections - Section 12 (6)
- Revision - Prescribed Authority on finally
deciding an election petition becomes
functus officio and cannot pass any order
subsequent thereto even if the election
petition has been decided finally calling
for the re-counting of votes - Election
Tribunal
become
functus
offico
after
pronouncement of its decision on the
election petition - The Act, 1947 does not
allow the Prescribed Authority to reentertain an already decided election
petition, modify an order, or pass a fresh
order. (Para - 11,15,16)

(B) Words and Phrases - "Functus Officio"
- any judge or quasi-judicial authority
would be considered as functus officio in
the eventuality that he/she has performed
his/her duty finally in its official capacity
and
nothing
remains
to
be
decided/considered/revisit on the said
subject matter unless there is a legal
provision to do so.(Para - 7)

(C) Words and Phrases - Principle of
finality - Principle of finality is attached to
the doctrine of functus officio, but there
are exceptions to the principle of finality -
Fraud as is a genuine, albeit limited,
exceptions to the important principle of
finality of litigation.(Para - 9)

Prescribed authority allowed election petition
partly - without fixing any date for the further
proceedings in the election petition -issued
direction for recounting of ballot papers -
inherent lack of jurisdiction to pass subsequent
order - considered final outcome of recounting -
again allowed same election petition finally -
declared respondent as a returned candidate.
(Para - 6,16)

HELD: - Prescribed Authority's decision to
partially allow the election petition without a
final decision has made it functus officio and has
no jurisdiction to entertain the petition again.
286 INDIAN LAW REPORTS ALLAHABAD SERIES
Prescribed Authority's order dated 21.3.2024,
which was seized by the revisional court, was
erroneous and perverse to the provisions of the
Act, 1947. Order was illegal, unwarranted, and
cryptic, warranting the court's exercise of its
extraordinary jurisdiction under Article 226 of
the Constitution of India. Impugned order
quashed.
Petitioner's
revision
pending
consideration in the revisional court, which is
expected to make a lawful decision as soon as
possible. (Para - 16,17)

Petition allowed. (E-7)

List of Cases cited:

1. Parshuram Vs St. of U.P. & ors., 2022 O
Supreme (All) 1629

2. Manoj Devi Vs St. of U.P. & ors., Writ C No.
33777 of 2022

3. Ram Kali Vs District Judge Hardoi & ors. ,
Writ C No. 6852 of 2023

4. Smt. Maneeta Devi Vs St. of U.P. & 8 ors. ,
Writ C No. 10442 of 2022)

5. Mohd Mustafa Vs U.P. Ziladhikari & ors., 2007
103 RD 282

6. Kusum Misra Vs St. of U.P., 2023 (5) AWC 4247

7. Jahida Begam Vs St. of U.P. & 8 ors., 2023
AIR (All) 120

8. Orissa Administrative Tribunal Bar Association
Vs U.O.I. & ors., 2003 SCC OnLine SC 309

9. Lalit Narayan Mishra Vs St. of H.P. & ors.,
2016 SCC OnLine HP 2866

10. VG Naidu Vs Pahalraj Gangaram, 2016 SCC
OnLine Mad 9710

11. Abrar Vs St. of U.P. & ors., 2004(5) AWC
4088

(Delivered by Hon'ble Dinesh Pathak, J.)

1. Heard learned counsel for the
petitioner, learned counsel for the private
respondent No. 3 as well as learned
Standing Counsel for the State-respondents
and perused the record on board.

2. Petitioner has invoked the
extraordinary jurisdiction of this Court
under Article 226 of the Constitution of
India assailing the order dated 21.3.2024
passed by Sub-Divisional Officer, Aonwla,
Bareilly whereby election petition under
Section 12-C of UP Panchayat Raj Act,
1947 (in brevity, 'Act, 1947') moved on
behalf of Rajkumari, respondent No. 3, has
been allowed and she has been declared
returned candidate on the post of Pradhan
of the village Guleli, Vikas Khand
Ramnagar,
Tehsil-
Aonwla,
District
Bareilly, after recounting of ballot papers in
pursuance of the order dated 2.3.2024.

3. Facts culled out from the record
are that in UP Panchayat Election 20202021 held on 15.4.2021, present petitioner
has been declared successful to the post of
Pradhan. Counting of votes was conducted
on 2.5.2021 and, thereafter, result was
declared on the same day. In the final
result, returned candidate (petitioner) has
secured 650 votes and the first runner
respondent No. 3 has secured 644 votes.
Having been aggrieved with the result of
the panchayat election, Smt. Raj Kumari
(respondent No. 3) has filed an election
petition dated 25.5.2021 with the prayer to
cancel the election result on the post of
Pradhan of village/Gram Panchayat, Guleli
and declare the election-petitioner as a
returned candidate after recounting of
votes.
After
exchange
of
respective
pleadings between the parties, learned
Prescribed Authority (Election Tribunal)
has framed as many as 11 issues and, after
due discussion, has allowed the election
petition in part, vide its order dated
2.3.2024, with a direction for recounting of
7 All. Smt. Asha Devi Vs. Prescribed Authority/Sub Divisional Magistrate & Ors.
287
ballot papers fixing 9.3.2024 as a date.
Having been aggrieved with the order of
recounting dated 2.3.2024, the returned
candidate (present petitioner) has preferred
a revision dated 12.3.2024 which has been
ordered to be registered and admitted, vide
order dated 22.3.2024 (Annexure No. 10).
During
pendency
of
the
revision,
recounting
process
was
completed.
Consequently, the Prescribed Authority has
passed
fresh
order
dated
21.3.2024
allowing the election petition and declared
the respondent No. 3 as a returned
candidate, which is under challenge before
this Court.

4. In this backdrop of the facts,
learned counsel for the petitioner, while
assailing
the
order
impugned
dated
21.3.2024, has questioned the jurisdiction
of the Prescribed Authority in passing the
order dated 21.3.2024 on the ground that
while passing the previous order dated
2.3.2024, whereby election petition has
been allowed in part, the Prescribed
Authority became functus officio, thus, he
has inherent lack of jurisdiction to pass
subsequent
order
impugned
dated
21.3.2024 whereby the same election
petition has been allowed second time and,
consequently, respondent No. 3 has been
declared as a returned candidate. He has
laid emphasis on the final observation
made by the Prescribed Authority in its
previous order dated 21.3.2024 whereby
election petition has been partially allowed.
It is next submitted that once the election
petition has been partially allowed without
fixing any date for further proceeding or
action, it amounts to final decision on the
election petition and nothing remains to be
decided
in
the
said
petition.
Thus,
subsequent order dated 21.3.2024 passed
by the Prescribed Authority, who became
functus officio, is nullity in the eye of law.
In support of his submissions, learned
counsel for the petitioner has placed
reliance on the follwoing cases:

 (i) Parshuram vs. State of UP
and others (Matter under Article 227 No.
31424 of 2021), decided on 23.12.2022 by
coordinate Bench at Lucknow of this
Court, 2022 O Supreme (All) 1629,

 (ii) Manoj Devi vs. State of UP
and 20 others (Writ C No. 33777 of
2022), decided on 29.3.2023 by the
coordinate Bench of this Court, Neutral
Citation No. 2013:AHC:67092

 (iii) Ram Kali vs. District Judge
Hardoi and 10 others (Writ C No. 6852
of 2023), decided on 9.8.2023 by the
coordinate Bench at Lucknow of this
Court (Neutral Citation No. 2023: AHCLKO 53074), and

 (vi) Smt. Maneeta Devi vs. State
of UP and 8 others (Writ C No. 10442 of
2022), decided on 13.4.2022 by the
coordinate Bench of this Court (Neutral
Citation No. 2022:AHC:54664)

5. Per Contra, learned counsel for
the contesting respondent No. 3 has
vehemently opposed the submissions as
advanced by the learned counsel for the
petitioner and contended that issuing a
direction for recounting of the ballot papers
is simply an aid to final decision on the
election
petition,
therefore,
order
of
recounting cannot be treated as a final order
rather same is an interlocutory order,
therefore, after recounting of ballot papers,
final decision has rightly been taken on the
election petition, vide order impugned
dated 21.3.2024. It is next submitted that
direction for recounting of the ballot papers
amounts to pendency of the election
288 INDIAN LAW REPORTS ALLAHABAD SERIES
petition subject to final outcome of the
recounting. Thus, learned Tribunal has
rightly allowed the election petition finally,
having regard to the result of the
recounting. In support of his contention,
learned counsel for the respondents has
placed
reliance
on
the
follwoing
judgments:-

 (i) Mohd Mustafa vs. U.P.
Ziladhikari and others, 2007 103 RD
282,

 (ii) Kusum Misra vs State of
U.P., 2023 (5) AWC 4247, and

 (iii) Jahida Begam vs State of
U.P. and 8 others, 2023 AIR (All) 120.

6. Having considered the rival
submissions advanced by learned counsel
for the parties and perusal of record, it is
manifested that point for consideration in
the instant writ petition lies in a narrow
compass as to whether the Prescribed
Authority has become functus officio while
partly allowing the election petition and
issuing a direction for recounting of ballot
papers, vide order dated 2.3.2024, thus, he
has inherent lack of jurisdiction to pass
subsequent order dated 21.03.2024, having
considered the final outcome of recounting,
again allowing the same election petition
finally and declaring the respondent No. 3
as a returned candidate?

7. In view of the point involved in
the instant matter, as mentioned above, it
would be befitting to define the phrase
"Functus Officio". Needless to say that any
judge or quasi-judicial authority would be
considered as functus officio in the
eventuality that he/she has performed
his/her duty finally in its official capacity
and
nothing
remains
to
be
decided/considered/revisit
on
the
said
subject matter unless there is a legal
provision to do so. In the recent judgment
of Orissa Administrative Tribunal Bar
Association vs. Union of India and
others, 2003 SCC OnLine SC 309, Hon.
Supreme Court has discussed the phrase
"functus officio". The relevant paragraphs
of the aforesaid judgment are quoted herein
below:-

 107. P. Ramanath Aiyer's The
Law Lexicon (1997 edition) defines the
term functus officio as:-

 "A term applied to something
which once has had a life and power, but
which has become of no virtue whatsoever
One who has fulfilled his office or is out of
office an authority who has performed the act
authorised so that the authority is exhausted"

 108. Black's Law Dictionary (5th
edition) defines the term as follows

 "Having fulfilled the function,
discharged the office or accomplished

agency, etc. which has fulfilled the
purpose of its creation, and is therefore of no
further virtue or effect

 109. The doctrine of functus officio
gives effect to the principle of finality. Once a
judge or quasi-judicial authority has rendered
a decision, it is not open to her to revisit the
decision and amend. correct clarify, or reverse
it (except in the exercise of the power of
review, conferred by law) Once a Judicial or
quasi-judicial decision attains finality, it is
subject to change only in proceedings before
the appellate court

 110. For instance, Section 362 of
the Code of Criminal Procedure 1975
7 All. Smt. Asha Devi Vs. Prescribed Authority/Sub Divisional Magistrate & Ors.
289
provides that a court of law is not to alter
its judgment once it is signed

 "362
Court
not
to
alter
judgment. Save as otherwise provided by
this Code or by any other law for the time
being in force, no Court, when it has
signed its judgment or final order
disposing of a case, shall alter or review
the same except to correct a clerical or
arithmetical error."

 111. In Hari Singh Mann v.
Harbhajan Singh Bajwa35, this Court
recognized that Section 362 was based on
the doctrine of functus officio

 70. The section is based on an
acknowledged principle of law that once a
matter is finally disposed of by a court, the
said court in the absence of a specific
statutory
provision
becomes
functus
officio and disentitled to entertain a fresh
prayer for the same relief unless the
former order of final disposal is set aside
by a court of competent jurisdiction in a
manner prescribed by law. The court
becomes functus officio the moment the
official order disposing of a case is signed.
Such an order cannot be altered except to
the extent of correcting a clerical or an
arithmetical error."

 112. The doctrine of functus
officio exists to provide a clear point
where the adjudicative process ends and to
bring quietus to the dispute. Without it,
decision-making bodies such as courts
could endlessly revisit their decisions.
With a definitive endpoint to a case before
a court or quasi-judicial authority, parties
are free to seek judicial review or to prefer
an appeal. Alternatively, their rights are
determined
with
finality.
Similar
considerations do not apply to decisions by
the state which are based entirely on
policy or expediency.

 115. Turning to the present case,
the appellants' argument that the Union
Government was rendered functus officio
after establishing the OAT does not stand
scrutiny. The decision to establish the
OAT was administrative and based on
policy considerations. If the doctrine of
functus officio were to be applied to the
sphere of administrative decision-making
by the state, its executive power would be
crippled. The state would find itself unable
to change or reverse any policy or policybased decision and its functioning would
grind to a halt. All policies would attain
finality and any change would be close to
impossible to effectuate.

 114. This would impact not
only major policy decisions but also
minor ones. For example, a minor policy
decision such as a bus route would not
be amenable to any modification once it
was notified. Once determined, the bus
route would stay the same regardless of
the demand for say, an additional stop at
a popular destination. Major policy
decisions such as those concerning
subsidies,
corporate
governance,
housing, education and social welfare
would be frozen if the doctrine of
functus officio were to be applied to
administrative decisions. This is not
conceivable because it would defeat the
purpose of having a government and the
foundation of governance. By their very
nature, policies are subject to change
depending
on
the
circumstances
prevailing in society at any given time.
The doctrine of functus officio cannot
ordinarily be applied in cases where the
government
is
formulating
and
implementing a policy.
290 INDIAN LAW REPORTS ALLAHABAD SERIES
 115. In the present case, the
State and Union Governments' authority
has
not
been
exhausted
after
the
establishment of an SAT. Similarly, the
State and Union Governments cannot be
said to have fulfilled the purpose of their
creation and to be of no further virtue or
effect once they have established an SAT.
The state may revisit its policy decisions in
accordance with law. For these reasons,
the Union Government was not rendered
functus officio after establishing the
OAT."

8. In the matter of Lalit Narayan
Mishra vs. State of Himachal Pradesh and
others, 2016 SCC OnLine HP 2866, Division
Bench of Hon'ble Himachal Pradesh High
Court has held that "Functus officio" is a Latin
term meaning having performed his or her
office. With regard to an officer or official
body, it means without further authority or legal
competence because the duties and functions of
the original commission have been fully
accomplished.
"Functus"
means
having
performed and "officio" means office. Thus, the
phrase functus officio means having performed
his or her office, which in turn means that the
public officer is without further authority or
legal competence because the duties and
functions of the original commission have been
fully accomplished.

 Trayner's Latin Maxims, 4th Edn.
gives the expression functus officio the
following meaning "Having discharged his
official duty. This is said of any one
holding a certain appointment, when the
duties of his office have been discharged.
Thus a Judge, who has decided a question
brought before him, is functus officio and
cannot review his own decision."

 In Wharton's Law Lexicon, 14th
Edn., the expression functus officio is
given the meaning: "a person who has
discharged his duties, or whose office or
authority is at an end."

 P.
Ramanatha
Aiyar's
Law
Lexicon gives the expression the meaning:
"A term applied to something which once
has had a life and power, but which has
become of no virtue whatsoever. Thus
when an agent has completed the business
which he was entrusted his agency is
functus officio."

 In Black's Law Dictionary Tenth
Edition, meaning of functus officio is:
"having performed his or her office (of an
officer or official body) without further
authority or legal competence because the
duties and functions of the original
commission
have
been
fully
accomplished."
In
other
words,
the
authority, which had a life and power, has
lost everything on account of completion of
purpose/activities/act.

(Emphasis added)

9. Dealing with the execution
proceedings, Hon'ble Single Bench of
Madras High Court in the matter of VG
Naidu vs. Pahalraj Gangaram, 2016 SCC
OnLine Mad 9710 has observed that till
the time of limitation subsists, there can be
any number of execution applications and
if statute, provides power to correct certain
account of certain kinds of errors, then the
doctrine of functus officio would be subject
to such qualification and its applicability
would dependent upon the nature and
extent of power conferred on the authority
functioning. It is further observed that
"principle of finality is attached to the
doctrine of functus officio, but, there are
exceptions to the principle of finality.
However, the court's inherent power to set
7 All. Smt. Asha Devi Vs. Prescribed Authority/Sub Divisional Magistrate & Ors.
291
aside the judgment only be invoked in
exceptional
circumstances
to
avoid
miscarriage of justice. Fraud as is a
genuine, albeit limited, exceptions to the
important principle of finality of litigation.

(Emphasis added)

10. To apply the proposition of law
qua functus officio, as discussed above, in
the given circumstances of the present
matter, it would be befitting to refer and
discuss the final observation made by the
Prescribed Authority in his order dated
2.3.2024, which is quoted herein below:

 अतः उक्त वििेचिा के आधार पर
चुिाि यावचका राजकुमारी की आंविक रूप
से स्वीकार की जाती है। मतपत्रं की
पुिनगणिा हेतु वििांक 09-03-2024 वियत की
जाती है। पुिनगणिा की कायनिाही विकास
खण्ड रामिगर तहसील आंिला वजला बरेली
में करायी जायेगी ।

 "Thus, in view of the discussion
as above, election petition of Raj kumari
is partly allowed. Date 9.3.2024 is being
fixed for recounting of ballot papers.
Proceeding
of
recounting
will
be
conducted in Vikas Khand, Ram Nagar,
Tehsil Aonwla, District Bareilly."

(Tranlation by Court)

11. It is evident from the first order
dated
2.3.2024
passed
by
Prescried
Authority that the election petition has been
allowed partially fixing the date for
recounting, without fixing any date for
further hearing in the election petition,
which resulted into final termination of the
proceeding in election petition filed on
behalf of respondent No. 3 under section
12-C of the Act, 1947. There is nothing on
record to demonstrate that further date has
been fixed for hearing in the election
petition intending to decide it finally after
final outcome of the recounting. Thus, a
genuine question has arisen as to what
remains to be decided in the election
petition while it has been allowed, even
partially, without fixing any further date for
the purposes of further hearing in the
election petition? Recounting of ballot
papers was the consequential effect of the
order dated 2.3.2024. However, declaring
the respondent No. 3 as a returned
candidate in consequence to the final
outcome of the recounting may be a
ministerial/procedural issue, but, same
cannot be made an integral part of the such
judicial proceedings under Section 12-C of
the Act, 1947, which has already been
terminated
by
previous
order
dated
2.3.2024. Partly allowing the election
petition and fixing the date for recounting,
vide order dated 2.3.2024 passed by
Prescribed Authority, is a paramount
consideration for the purposes to decide as
to whether, after said order being passed,
the Prescribed Authority became functus
officio or not. Dealing with this question,
the coordinate Bench at Lucknow of this
Court in the case of Parshuram (supra) has
held that once the final order has been
passed
in
an
election
petition,
the
Prescribed
Authority
became
functus
officio
and
cannot
pass
any
order
subsequent thereto even if election petition
has been decided finally for recounting of
votes. The relevant paragraphs No. 6, 36
and 37 of the aforesaid judgment are
quoted in hereinbelow:-

 "6. The legal question which has
arisen in the instant petition is whether
the Prescribed Authority has erred in law
in directing for re-counting of votes while
finally deciding the election petition
292 INDIAN LAW REPORTS ALLAHABAD SERIES
inasmuch as to whether the Prescribed
Authority could pass any further order on
receipt of the result of the re-counting of
votes once the election petition had been
finally decided and consequently the
Prescribed Authority became 'functus
officio'?

 36. As already indicated above,
the Apex Court in the case of Hari Vishnu
Kamath (supra) has held that after the
Election Tribunal finally pronounces its
decision, it becomes 'functus officio'
meaning thereby that it would not have
any power to pass any order in the
election petition after it pronounces its
order. In the instant case what the
Election
Tribunal
headed
by
the
Prescribed Authority has done is that it has
finally allowed the election petition and has
directed for a recounting. Even if the result
of recounting of the votes is to be either way,
the Election Tribunal having become
'functus officio' after pronouncement of its
decision/allowing the petition, it would not
be able to pass any further orders. As such
keeping in view the settled proposition of
law, Article 243-O of the Constitution of
India categorically providing that only by
means of an election petition the election to
the Panchayat can be called in question and
the election petition having been finally
decided, the Prescribed Authority/Election
Tribunal, thus became functus officio and
cannot pass any further orders in the
matter. As such, the impugned order has to
be treated as a final order in all respects and
accordingly
it
is
apparent
that
the
Prescribed Authority has passed a patently
perverse order and has failed to exercise
jurisdiction vested in him i.e. of finally
deciding an election petition either way.

 37. Keeping in view the aforesaid
discussion, the legal question which has
arisen in the instant petition is answered
below:-

 The Prescribed Authority on
finally deciding an election petition
becomes functus officio and can not pass
any order subsequent thereto even if the
election petition has been decided finally
calling for the re-counting of votes."

12. In the case of Mohd. Mustafa
(supra), the Division Bench of this Court
has discussed scope of maintainability of
the revision under Section 12-C (6) of the
Act, 1947 in the event where order of
recounting has
been
passed
by
the
Prescribed Authority. The questions, which
were referred to Hon'ble Division Bench,
as mentioned in paragraph No.2 of the
aforesaid judgement, are quoted herein
below:-

 "[2] The learned Single Judge
hearing the writ petition pointed out the
conflict in the view taken by the learned
Single Judge in Abrar's case (supra) with
that of the decisions relied on by the
learned Counsel for the petitioner and
framed the following questions to be
answered by a larger Bench:

 (I) Whether the revision under
Section 12-C (6) shall lie only against a
final order passed by Prescribed Authority
deciding the election petition under
Section 12-C(1)_or a writ petition can be
filed against an order of recount, which
has been passed after deciding
 certain issues raised in the
election petition?

 (II)Whether the judgment or
learned Single Judge in Abrar v. State of
U.P., 2004 5 AWC 4088 and Ors. lays
down correct law?"
7 All. Smt. Asha Devi Vs. Prescribed Authority/Sub Divisional Magistrate & Ors.
293
13. While answering the quetion
referred in the matter of Mohd. Mustafa
(supra), Hon'ble Division Bench has shown
its inability to circumscribe to the view
taken by the learned Single Judge in the
matter of Abrar v. State of U.P. and others,
2004(5) AWC 4088 that the disposal of an
application for recount would amount to be
a final order as it disposes of the
application for recounting finally. It is
observed that the finality comes only after
the disposed of the election application as
the relief of setting aside an election or
dismissing an election application comes at
the final stage and not by mere disposal of
an application of recount or ordering
recount on deciding the issue framed for
this purpose. Discussing the facts and
circumstance of the Mohd. Mustafa
(supra) case, it has been observed that only
the order of recount has been passed by the
Prescribed Authority and other issues were
remained to be decided after recounting of
ballot papers, as to whether the election had
been held in accordance with law and as to
whether the votes casted in favour of
contesting respondents have been mixed up
with the votes of the returned candidate and
on the basis of which the petitioner has
been declared elected. It was further to be
decided as to whether election petition is to
be allowed or dismissed. In this backdrop
of the facts, Hon'ble Division Bench of this
Court has observed that by no stretch of
imagination it can be held that the order of
recounting of votes has finally disposed of
the election petition. In such specific facts
and circumstances of the case, wherein
simply order for recounting has been
passed and original election petition was
kept pending to be decided, Hon'ble
Division Bench of this Court answered to
the questions referred that revision under
Section 12-C(2) of Act 1947 is always
preferred against the final order passed by
the Prescribed Authority, and the order for
recounting
is
an
interlocutory
order,
therefore, revision is not maintainable.
Relevant paragraphs No. 24, 25, 26 and 27
of the aforesaid case are quoted herein
below:

 "[24] The order impugned in the
writ petition cannot be held to have
disposed of the election application for the
reason that the Election Tribunal framed
following three issues:

 (1) Whether the counting in the
election on the post of Praonan of village
Handia was conducted in accordance with
law?

 (2) Whether the agents of the
applicant in election application, were
forcibly removed from the place of
counting and the votes cast in favour of
the election applicant had been mixed up
with the votes of the returned candidate
(present petitioner) and on the basis of
which opposite party No. 1 (present
petitioner) was declared elected? And

 (3) Whether on the facts and
circumstances of the case, the recounting
of votes is permissible and the election had
been held in accordance with law?

 [25] It is evident from the order
impugned that only the order of recount
has been passed. However, the other
issues are yet to be decided after recount
of ballot papers as to whether the -election
had been held in accordance with law and
as to whether the votes cast in lavour of
the contesting respondent has been mixed
up with the votes of the returned candidate
and on the basis of which the petitioner
has been declared elected. It is further to
be decided as to whether the election
294 INDIAN LAW REPORTS ALLAHABAD SERIES
application is to be allowed or dismissed,
Therefore, by no stretch of imagination, it
can be held that the order of recount of
votes has finally disposed of the election
application.

 [26] We are, therefore, with the
utmost respect, not able to circumscribe to
the view taken by the learned Single Judge
in the Abrar's case (supra) for the reasons
aforesaid and, therefore, we nave no
hesitation in holding that the said decision
does not lay down the law correctly on the
question of the maintainability of revision
under Section 12-C(6) of the Act in
respect of an application disposed of by
the Prescribed Authority for recount. We
further approve the law lald down in the
cases relied upon by the learned Counsel
for the petitioner,

 [27] We answer the questions
referred to by the learned Single Judge as
follows:

 (I) A revision under Section 12C(6) of the Act shall lie only against a
final order passed by the Prescribed
Authority deciding the election application
preferred under Section 12-C(1) and not
against any interlocutory order or order of
recount of votes by the Prescribed
Authority.

 (II) The judgment of the learned
Single Judge in the case of Abrar v. State
of U.P. and Ors., 2004 5 AWC 4088 does
not lay down the law correctly and is,
therefore, overruled to the extent of the
question of maintainability of a revision
petition, as indicated hereinabove.

 (III) As a natural corollary to
the above, we also hold that a writ petition
would be maintainable against an order of
recount
passed
by
the
Prescribed
Authority while proceeding in an election
application under Section 12-C of the U.P.
Panchayat Raj Act, 1947."

14. Facts and circumstances of the
cited case viz. Mohd. Mustafa (supra) is
distinguishable
from
the
facts
and
circumstances of the present case wherein
election petition has been allowed partly by
order dated 2.3.2024. Prescribed Authority
has decided all the eleven (11) issues as
formulated in the election petition filed
under Section 12-C of the Act, 1947 and
nothing remains to be decided. It would not
be befitting to discuss the issues at this
juncture inasmuch as order dated 2.3.2024
is under challenge in revison under Section
12-C(6) of Act, 1947 which is still pending
before revisional court. While dealing with
an election petition, there would be two
options
available
for
the
Prescribed
Authority; either to decide the election
petition finally leaving no issue to be
decided in further proceeding or fix dates
for further proceedings intending to decide
the
election
petition
finally.
If
the
Prescribed Authority chose to keep the
election petition pending and directs to
recount of votes then it would be an
interlocutory order, in view of the ratio
decided by the Hon'ble Division Bench of
this Court in the matter of Mohd. Mustafa
(supra). However, on the flip side, if the
Prescribed Authority passes an order
allowing or dismissing the election petition,
may be partly, without keeping the election
petition
pending,
with
direction
for
recounting of votes, then, in my considered
opinion, it would tantamount a final order
and to that extent, the Prescribed Authority
would be treated as functus officio, who
has finally terminated the proceeding of
election petition without keeping it pending
for further proceedings.
7 All. Smt. Asha Devi Vs. Prescribed Authority/Sub Divisional Magistrate & Ors.
295
15. The case of Mohd. Mustafa
(supra) was discussed by the coordinate
Bench at Lucknow of this Court in case of
Parshuram (supra) and concluded that
Election Tribunal become functus offico
after pronouncement of its decision on the
election
petition.
Hon'ble
Judge has
considered the provisions under Article
243-O of the Constitution of India as well.
In similar facts and circumstances, wherein
election petition has been allowed and
direction has been issued for recounting of
ballot papers, co-ordinate Bench of this
Court in the case of Kusum Kumari
(supra) and Ram Kali (supra) has finally
upheld that such orders are final order in
the eye of law subject to remedy of revision
under Section 12-C (6) of the Act, 1947. It
is
apposite
to
mention
that
while
entertaining the revision under Section 12C (6) of the Act, 1947 against the order
dated 2.3.2024, the revisional court, vide
order dated 22.3.2024, has considered the
order under revision as a final order to be
revisable under Section 12-C (6) of the Act,
1947 and, accordingly, passed order for
admission
of
the
revision
and
its
registration. While confronted with the
counsel for the parties querying the
pendency of the revision petition, they have
admitted that said revision is still seized
with the revisional court against the order
dated 2.3.2024.

16. In this conspectus, as above, I
found
substance
in
the
submissions
advanced by the learned counsel for the
petitioner that in view of allowing the
election petition partly, vide order dated
2.3.2024, that too, without fixing any date
for the further proceedings in the election
petition intending to decide any issue or to
take final decision on said election petition,
the Prescribed Authority became functus
officio and he has an inherent lack of
jurisdiction to entertain such election
petition again and allowed the same second
time declaring respondent No. 3 as a
returned candidate. It appears, prima facie,
that learned Prescribed Authority has
passed order dated 21.3.2024 in zeal, while
the revision dated 12.3.2024 was seized
with the revisional court to examine the
legality and validity of the order dated
2.3.2024. Even assuming that no interim
order was passed by the revisional court,
the Prescribed Authority has not justified in
passing the order dated 21.3.2024 while he
had already laid his hands off from the
election
petition
by
terminating
its
proceeding
finally
vide
order
dated
2.3.2024. There is no provision under the
Act, 1947 authorizing the Prescribed
Authority to re-entertain the election
petition, which has already been decided,
and modify the previous order dated
2.3.2024 passed by him or to pass
subsequent fresh order in furtherance of the
previous order. The order under challenge,
passed by the Prescribed Authority, is
patently erroneous and perverse to the
provisions of the Act, 1947 and same is
liable
to
be
qushed
being
illegal,
unwarranted under the law, cryptic and
suffers from infirmity warranting the
indulgence of this Court in exercise of its
extraordinary jurisdiction under Article 226
of the Constitution of India. The existence
of
such
order
beget
prejudice
and
miscarriage of justice to the present
petitioner, who is an elected representative
in the democratic setup.

17. Resultantly, instant writ
petition succeeds and is allowed. Order
impugned dated 21.3.2024 passed by the
Prescribed
Authority/Sub-Divisional
Officer, Aonwla (Annexure No. 1) is
hereby quashed. Parties are already under
litigation before the Revisional Court in
296 INDIAN LAW REPORTS ALLAHABAD SERIES
revision
filed
on
behalf
of
present
petitioner
assailing
the
order
dated
2.3.2024. The final outcome of the
recounting, subject to objection if any at
the relevant time, shall be kept in the sealed
cover and shall be subject to the final
decision of the revisional court. The
revisional court, before whom revison filed
on behalf of the petitioner is pending
consideration, is expected to decide the said
revision strictly in accordance with law as
early as possible.
---------
(2024) 7 ILRA 296
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.07.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.
THE HON'BLE MANJIVE SHUKLA, J.

Writ C No. 20071 of 2024

Sadhna Sahu ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Nishant Mishra, Sri Vinay Kumar

Counsel for the Respondents:
A.S.G.I., Sri Bimalesh Ch. Tripathi, C.S.C.,
Sri Sudarshan Singh

Pradhan Mantri Garib Kalyan Package:
Insurance Scheme for Health Workers
Fighting COVID-19 - The scheme was
extended via several notifications, including
Notification
No.
F.No.Z.21020/16/2028-PH
issued on 26.04.2021. By virtue of this
notification, the scheme was extended upto
24.03.2021. The notification clarified that the
period would continue for 180 days w.e.f.
24.04.2021. Petitioner's husband, a Ward Boy
working in the O.P.D. located opposite the
COVID
section,
succumbed
to
COVID-19.
Benefit was rejected on the grounds that the
death of the petitioner's husband occurred three
months after 28.03.2020, and he was not
directly working in the COVID ward but was in
the
O.P.D.
department.
Held:
Beneficial
schemes provided by the Government are not to
be interpreted in a technical manner but must
be viewed holistically. Health workers at risk of
being
impacted
by
COVID-19,
including
accidental loss of life due to contracting COVID19, are to be covered under such schemes.
Since the petitioner's husband passed away on
08.05.2021, he would be covered under the
scheme. The authorities were directed to
provide the petitioner with ex-gratia payment in
accordance with the law. (Paras 4, 5)

Writ Petition allowed. (E-5)

List of Cases cited:

1.Sangeeta Wahi Vs U.O.I. & ors., 2023 SCC
OnLine Del 6808

(Delivered by Hon'ble Shekhar B. Saraf, J.
&
Hon'ble Manjive Shukla, J.)

1. Heard Sri Nishant Mishra and Sri
Vinay Kumar, learned counsel appearing
for the petitioner, Sri Sudarshan Singh,
learned counsel appearing for Respondent
No.1
and
learned
Standing
Counsel
appearing for Respondents No. 2 to 6.

2. This is a writ petition under
Article 226 of the Constitution of India
wherein the petitioner is aggrieved by the
impugned order passed by the respondent
no.6 under 'Pradhan Mantri Garib
Kalyan Package : Insurance Scheme for
Health Workers Fighting COVID-19'.

3. The grounds taken by the
authorities are dual in nature. The first
ground is that death of the petitioner's
husband took place subsequent to three
months of the date 28.3.2020 and therefore,
the same would not be covered by the