# Smt. Kusum Singh v. State of U.P. and others

- **Citation:** (2007) 1 ILRA 78
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-09-19
- **Case number:** Civil Misc. Writ Petition No. 40677 of 2004
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kusum-singh-v-state-of-u-p-and-others-40886
- **Pages:** 4

## Headnote

Constitution of India, Art. 226-Service
Law-Right
of
appointment-Shiksha
Mitra-life
of
appointment-one
yearprovision for renewal is subsequent year
governed by the G.O.-petitioner stood
top most candidate in merit list-denial on
the ground-her mother-in-law is village
Pradhan-being president of selection
committee
falls
under
prohibited
relationship under G.O. dated 1.7.2000even
under
Rule
105
(5)
of
U.P.
Panchayat Raj Rules 1947-mother-inlaw
not
specified-contention
about
denied of her claim by efflux of timeinfractuous-not
available-pendency
of
writ petition-shall not vanish the right
her
appointment
and
to
right
for
consideration of renewal of terms.

Held: Para 12

Since the petitioner has been denied
appointment on the post of Shiksha
Mitra, she also stand denuded of her
right to be considered for renewal of the
term as per para 5 of the aforesaid
Government Order. The pendency of this
case before this Court shall not vanish
the
right
of
petitioner
to
get
appointment on the post of Shiksha
Mitra and also to loose right to be
considered for renewal of the term. The
scheme laid down in the aforesaid
Government Orders makes it clear that
once a person is selected as Shiksha
Mitra, and has performed satisfactory, he
is not be terminated or substituted by
another person. In these circumstances,
it cannot be said that the writ petition is
rendered infructuous by efflux of time.
Case law discussed:
2005 (2) E.S.C.-1199 relied on.

## Text

78 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
transgression of administrative guidelines
cannot also be interfered with, as they do
not confer any legally enforceable rights,
unless it is shown to be vitiated by mala
fides or is made in violation of any
statutory provision.

5. We are of the opinion that since
no Government Order available to the
concerned C.M.O. at the relevant point of
time, it appears that passing of the order
of transfer was without jurisdiction,
therefore, such order cannot be sustained.
Hence
the
impugned
order
stands
quashed.

6. The writ petition is allowed.

7. However, no order is passed as to
costs.

But passing of this order will not
debar the authority concerned to pass such
order afresh in accordance with law.

Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.09.2006

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 40677 of 2004

Smt. Kusum Singh

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

Counsel for the Petitioner:
Sri R.K. Pandey
Sri S.K. Shukla

Counsel for the Respondents:
Sri Abhinav Upadhyay
S.C.

Constitution of India, Art. 226-Service
Law-Right
of
appointment-Shiksha
Mitra-life
of
appointment-one
yearprovision for renewal is subsequent year
governed by the G.O.-petitioner stood
top most candidate in merit list-denial on
the ground-her mother-in-law is village
Pradhan-being president of selection
committee
falls
under
prohibited
relationship under G.O. dated 1.7.2000even
under
Rule
105
(5)
of
U.P.
Panchayat Raj Rules 1947-mother-inlaw
not
specified-contention
about
denied of her claim by efflux of timeinfractuous-not
available-pendency
of
writ petition-shall not vanish the right
her
appointment
and
to
right
for
consideration of renewal of terms.

Held: Para 12

Since the petitioner has been denied
appointment on the post of Shiksha
Mitra, she also stand denuded of her
right to be considered for renewal of the
term as per para 5 of the aforesaid
Government Order. The pendency of this
case before this Court shall not vanish
the
right
of
petitioner
to
get
appointment on the post of Shiksha
Mitra and also to loose right to be
considered for renewal of the term. The
scheme laid down in the aforesaid
Government Orders makes it clear that
once a person is selected as Shiksha
Mitra, and has performed satisfactory, he
is not be terminated or substituted by
another person. In these circumstances,
it cannot be said that the writ petition is
rendered infructuous by efflux of time.
Case law discussed:
2005 (2) E.S.C.-1199 relied on.

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

1. Heard Sri R.K. Pandey, learned
counsel for the petitioner and Sri Abhinav
Upadhyay, learned Standing Counsel for
the respondents.
1 All] Smt. Kusum Singh V. State of U.P. and others
79
2. The petitioner has sought a
mandamus commanding the respondents
to appoint him on the post of Shiksha
Mitra in Primary School Ameliya, Gram
Panchayat Chandapur, Block Koraon,
District Allahabad.

3. The brief facts giving rise to this
petition are that pursuant to the various
Government
orders
laying
down
guidelines regarding appointment on the
post of Shiksha Mistra in Primary
Schools, a selection was held in the year
2004 wherein the petitioner was placed on
the top of the select list for appointment to
the post of Shiksha Mitra in Primary
School
Ameliya,
Gram
Panchayat
Chandapur,
Block
Koraon,
District
Allahabad as is apparent from the
proceedings of the Selection Committee
(Annexure-2
to
the
writ
petition).
However,
she
has
been
denied
appointment on the post of Shiksha Mitra
on the ground that her mother-in-law is
Gram Pradhan of Village Chandapur and
therefore, being closely related to the
Gram Pradhan, she is disqualified for
appointment under the Government Order
dated 1.7.2000.

4. Learned counsel for the petitioner
vehemently
contended
that
the
relationships which are prohibited have
been
specifically
mentioned
in
the
aforesaid Government order which does
not
include
"mother-in-law"
and
therefore, the petitioner could not have
been disqualified for appointment to the
post of Shiksha Mitra.

5. The short question required
consideration in this case is whether the
petitioner
was
disqualified
for
appointment to the post of Shiksha Mitra
on the ground that her mother-in-law was
Gram Pradhan and whether the said
relationship
is
prohibited
under
Government order dated 1.7.2000.

6. The Government order provides
that the near relatives of Pradhan and
Secretary of Shiksha Samiti shall not be
appointed as Shiksha Mitra. The Gram
Pradhan is the Sabhapati of the Selection
Committee. The near relatives have
further been specified which are father,
grand-father, father-in-law, son, grandson, brother-in-law (Damad), brother,
sister, husband, wife, daughter and
mother. The relevant extract of the
aforesaid Government order is reproduced
as under:-

"f'k{kk lfefr ds lHkkifr o lfpo ds fudV lEcU/kh
dk p;u f'k{kk fe= ds :i esa ugha fd;k tk;sxkA lEcfU/k;ksa
dk rkRi;Z firk] nknk] Lolqj ??fi= ,oa ek= lEcU/kh?? iq=]
ikS=] nkekn] HkkbZ] cgu] ifr] iRuh] iq=h rFkk eka ls gSA"

7.

Learned
Standing
Counsel
however, vehemently contended that the
various
relatives
in
the
aforesaid
Government order are illustrative and not
exhaustive since the basic purpose is to
exclude the near relatives of the persons
who play an important role in the
Selection Committee. He submits if a
father-in-law is prohibited, it is not
understandable as to why mother-in-law
will not be prohibited. However, this issue
is no more res integra since a Division
Bench of this Court in Gyan Pratap
Singh Vs. State of U.P. and others
2005(2) Education Service Cases, 1199
has already considered a similar issue.
While interpreting provision contained in
Sub-rule (5) of Rule 165 of the U.P.
Panchayat Raj Rules, 1947 (hereinafter
referred to as 1947 Rules) it was held that
relationships identified in the explanation
are exhaustive and not illustrative.
80 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
8. Sub-rule 4 of Rule 165 of 1947
Rules prohibits appointment of Panchayat
members relation to any post. The
explanation of Sub-rule 5 of Rule 165
provides as under:-

"Explanation-The word ''relation' in
the proviso means father, grand-father,
father-in-law, maternal or paternal uncle,
son,
grandson,
son-in-law,
brother,
nephew,
first
cousin, brother-in-law,
sister's husband, wife, wife's brother, son
of nephew."

9. A Division Bench of this Court
after reading the aforesaid explanation
took a view that explanation is not
illustrative but exhaustive and the word
relation is restricted to it meaning
assigned and specified in the aforesaid
provision. It has also held that it is not for
the Court to find out different degrees or
items of prohibition to exchange the
aforesaid relationship though it has not
mentioned in the Rule. The English
translation of the provision in the
Government Order would be as follows:-

"Relative means father, grandfather,
father-in-law (maternal or paternal), son,
grandson, son-in-law, brother, sister,
husband, wife, daughter and mother."

10. The language of the Government
order providing the meaning of relation is
pari materia with the explanation to Rule
165(5) of 1947 Rules and therefore,
though at first flush the contention of the
learned Standing Counsel appears to be
attractive but I feel bound by the view
taken by the Division Bench in Gyan
Pratap Singh (Supra) and hold that the
petitioner
could
not
have
been
disqualified only on the ground that her
mother-in-law was Gram Pradhan of the
Panchayat.

11. The learned Standing Counsel
however vehemently contended that the
matter pertains to the year 2004 and since
the period of appointment of Shiksha
Mitra is only one year, therefore, some
other person must have been appointed
and this petition has rendered infructuous
by efflux of time.

12. In my view the submission is to
be noted for rejection outright. A perusal
of the Government Order dated 1.7.2000
would show that though a Shiksha Mitra
is to be appointed for an academic
Session but has a right of renewal in the
next Session subject to his satisfactory
work and performance in the preceding
academic Session. Thus though initial
appointment of a Shiksha Mitra is only
for one academic year but under the
Government Order he has a right to be
considered for renewal of the term in the
next academic Session provided his work,
performance and conduct in the preceding
Session has been satisfactory. Since the
petitioner has been denied appointment on
the post of Shiksha Mitra, she also stand
denuded of her right to be considered for
renewal of the term as per para 5 of the
aforesaid
Government
Order.
The
pendency of this case before this Court
shall not vanish the right of petitioner to
get appointment on the post of Shiksha
Mitra and also to loose right to be
considered for renewal of the term. The
scheme laid down in the aforesaid
Government Orders makes it clear that
once a person is selected as Shiksha
Mitra, and has performed satisfactory, he
is not be terminated or substituted by
another person. In these circumstances, it
1 All] Raghuvir V. State of U.P.
81
cannot be said that the writ petition is
rendered infructuous by efflux of time.

13. In the result, the writ petition
succeeds and is allowed. A mandamus is
issued to the respondents to consider
petitioner for appointment to the post of
Shiksha Mitra and not to disqualify her
only on the ground that her mother-in-law
is the Gram Pradhan of the concerned
Gram Panchayat, if she fulfills all other
eligibility qualification etc., and pass an
appropriate
order
regarding
her
appointment
expeditiously
preferably
within a period of 2 months from the date
of production of a certified copy of this
order.

Petition Allowed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.09.2006

BEFORE
THE HON'BLE RAVINDRA SINGH, J.

Criminal Misc. Bail Application No.17935
of 2006

Raghuvir

...Applicant
Versus
State of U.P.

 ...Respondent

Counsel for the Applicant:
Sri D.N. Wali

Counsel for the Respondent:
A.G.A.

Code of Criminal Procedure-Section-439Bail-day light murder in Police station-in
heart of city-F.I.R. lodged promptly-role
of firing assigned to the applicantincident witnessed by so many personsheld-not entitled for grant of Bail.

Held: Para 6

Considering
the
seriousness
of
the
allegations made against the applicant
and other co-accused persons and they
have committed the murder of the
deceased in police custody in broad day
light in the heart of the city and the
F.I.R. has been promptly lodged, the role
of firing is assigned to the applicant also
and the deceased had received injuries,
the incident had been witnessed by so
many
persons
and
considering
the
submissions made by both the sides and
without expressing any opinion on the
merits of the case, the applicant is not
entitled for bail. Therefore the prayer for
bail is refused.

(Delivered by Hon'ble Ravindra Singh, J.)

1. This application has been filed by
the applicant Raghuvir with a prayer that
he may be released on bail in Case Crime
No.233
of
2006,
under
Sections
312,149,148,147 and 506 I.P.C., P.S.
Kotwali Nagar, District Etah.

2. The prosecution story, in brief, is
that the F.I.R. of this case has been lodged
by the Constable Digvijay Singh on
17.4.2006 at 6.15 P.M. in respect of the
incident which had occurred on 17.4.2006
at 5.30 P.M. The distance of the Police
Station was about 1 kl.mt. from the
alleged place of occurrence. It is alleged
that the accused Bablu alias Dhirendra
involved in Case Crime No.73 of 2006
under Section 60 of the Excise Act and
the deceased Raj Kumar involved in Case
Crimes No.74 of 2006 and 75 of 2006
were arrested and they were taken by the
first informant and constable 97 Rajveer
Singh and H.G. Hari Singh for getting the
remand in the court of learned A.C.J.M.,
Kasganj but the court was closed.
Thereafter accused persons were brought
to Etah by Roadways Bus and they
proceeded by sitting, in two Rickshaws to