# Smt. Reena Devi v. State of U.P. and others

- **Citation:** (2009) 3 ILRA 1131
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-12-07
- **Case number:** Civil Misc. Writ Petition No. 56761 of 2008
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-reena-devi-v-state-of-u-p-and-others-41401
- **Pages:** 3

## Headnote

Constitution
of
India
Article
226Cancellation of Appointment-petitioner
was appointed as Shiksha Mitra-on long
term observe of R-6-Gaon Sabha passed
resolution in favour of petitioner she
continually worked and renewal of her
tenure
also
given
by
order
dated
22.7.2008-by
impugned
order
dated
15.10.2008
the
B.S.A.
reviewed
its
earlier
order
behind
the
back
of
petitioner-held-the appointment of R-6
was confined for 11 month only-No
provision of long period of leave-B.S.A.
acted beyond its jurisdiction apart from
order
passed
in
utter
violation
of
principle
of
Natural
Justice-not
sustainable.

Held: Para 6

It
is,
therefore,
evident
that
the
respondent no.6 was absent for more
than a year and the entire tenure of a
Shiksha Mitra in a session is 11 months.
Accordingly, the order passed by the
Basic Education Officer on 22nd July,
2008 was in accordance with the said
government order. It did not require any
review at his hand. The order dated
15.10.2008 proceeds on an erroneous
assumption and is untenable in the eyes
of law. Even otherwise also it has been
passed in violation of principles of
natural justice.

## Text

3 All] Smt. Reena Devi V. State of U.P. and others
1131
reproduced above, has not recorded any
reason, whatsoever, at all.

14. In that view of the matter, we are
left with no option than to set aside the
order impugned.

15. Accordingly, we set aside the
impugned order passed by the learned
Single Judge.

16. As we have set aside the
impugned order passed by the learned
Single Judge on the aforesaid ground
alone, nothing shall prevent the learned
Judge from passing fresh order bearing in
mind the observations aforesaid.

17. The petition shall be listed on
4th January, 2010 as directed by the
learned Single Judge in the impugned
order.

18. In the result, the appeal is
allowed and the impugned order passed
by the learned Single Judge is set aside
with the observation aforesaid.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.12.2009

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 56761 of 2008

Smt. Reena Devi

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

Counsel for the Petitioner:
Sri M.R. Khan
Sri Rajendra Prasad
Sri V.K. Mishra

Counsel for the Respondents:
Sri Anuj Kumar
Sri Ramesh Kumar
C.S.C.

Constitution
of
India
Article
226Cancellation of Appointment-petitioner
was appointed as Shiksha Mitra-on long
term observe of R-6-Gaon Sabha passed
resolution in favour of petitioner she
continually worked and renewal of her
tenure
also
given
by
order
dated
22.7.2008-by
impugned
order
dated
15.10.2008
the
B.S.A.
reviewed
its
earlier
order
behind
the
back
of
petitioner-held-the appointment of R-6
was confined for 11 month only-No
provision of long period of leave-B.S.A.
acted beyond its jurisdiction apart from
order
passed
in
utter
violation
of
principle
of
Natural
Justice-not
sustainable.

Held: Para 6

It
is,
therefore,
evident
that
the
respondent no.6 was absent for more
than a year and the entire tenure of a
Shiksha Mitra in a session is 11 months.
Accordingly, the order passed by the
Basic Education Officer on 22nd July,
2008 was in accordance with the said
government order. It did not require any
review at his hand. The order dated
15.10.2008 proceeds on an erroneous
assumption and is untenable in the eyes
of law. Even otherwise also it has been
passed in violation of principles of
natural justice.

(Delivered by Hon'ble A.P. Sahi, J.)

1. The petitioner claims that she was
selected and appointed as Shiksha Mitra
against the post which had fallen vacant
on account of the absence of Smt. Gyanti
Devi, respondent no.6. The petitioner
contends that since Smt. Gyanti Devi was
absent for more than a year, the Village
Education Committee had passed a
1132 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
resolution in her favour. A letter of
appointment was issued on 29.9.2007.
After having been appointed the petitioner
claims that she was performing her duties
and renewal of her appointment was also
resolved by the Committee on 10.5.2008.

It is urged that in these circumstances
there was no occasion to allow respondent
no.6 to come back and rejoin her post
after such a long absence. The claim of
respondent no.6 was rejected by the Basic
Education Officer on 22nd July, 2008 (a
copy of the said order is Annexure-13 to
the writ petition).

It appears that the matter was sought
to be reviewed at the instance of
respondent no.6 and the Basic Education
Officer reviewed the earlier order on
15.10.2008 which is under challenge in
this petition.

2. Learned counsel for the petitioner
contends that, firstly, the Basic Education
Officer has no power to review his earlier
order and, secondly, the long absence of
respondent no.6 was neither permissible
nor could be condoned by the the Basic
Education Officer. It is provided in the
government order dated 15.6.2007 that
maternity leave can be sanctioned only for
three months at a time and that too even
for two child biths only. Learned counsel
contends that the aforesaid provision was
not even applicable in the present case.
Even otherwise, there was no other
provision under which the respondent
no.6 could have sought leave and
abandoned her teaching job as Shiksha
Mitra.

The matter was entertained and an
interim order was granted but the same
was vacated on the ground that the
caveator was not informed inspite of a
caveat application having been filed.
Learned
counsel
contends
thereafter
affidavits have been exchanged and it is
evident that the impugned order had been
passed without notice or opportunity to
the petitioner and without having any
power to review the same.

3. A counter affidavit has been filed
on behalf of respondent no.6 in which it
has been asserted that the selection of the
petitioner was not in accordance with
Rules and as a matter of fact there was no
valid resolution in her favour on the basis
whereof she performed her duties as
Shiksha Mitra. A rejoinder Affidavit
denying the said allegations has been
filed. Learned counsel for the petitioner
further informs that the learned counsel
for the respondent no.6 has been informed
in writing that the matter is unlisted and is
running in this Court in the computer list
from 2.12.2009. Inspite of the aforesaid
knowledge
learned
counsel
for
the
respondent no.6 is not present.

4. I have heard learned counsel for
the petitioner, learned counsel for Gaon
Samaj and learned Standing Counsel for
the State Authorities.

5. The contention raised is that the
Government Order dated 15.6.2007 does
not extend any benefit of leave of the
nature
which
has
been
impliedly
sanctioned in favour of respondent no.6.
The aforesaid claim appears to be correct.
The government order does not empower
the authorities to condone the absence
beyond what has been provided for in the
government order. The respondent no.6
according to the impugned order itself
was absent from 1.11.2005 till 25.2.2007.
3 All] M/s Mahabir Jute Mills Ltd. V. A.D.J., Gorakhpur. and others
1133
6. It is, therefore, evident that the
respondent no.6 was absent for more than
a year and the entire tenure of a Shiksha
Mitra in a session is 11 months.
Accordingly, the order passed by the
Basic Education Officer on 22nd July,
2008 was in accordance with the said
government order. It did not require any
review at his hand. The order dated
15.10.2008 proceeds on an erroneous
assumption and is untenable in the eyes of
law. Even otherwise also it has been
passed in violation of principles of natural
justice.

7. The writ petition is, therefore,
allowed and the order dated 15.10.2008 is
set-aside. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.12.2009

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No. 64215 of 2009

M/s. Mahabir Jute Mills Ltd.

 ...Defendant/Petitioner
Versus
Additional District Judge, Gorakhpur and
others

 ...Plaintiffs/Respondents

Counsel for the Petitioner:
Sri Arvind Srivastava

Counsel for the Respondents:
Sri Ashish Agarwal
Sri A.K. Gupta

U.P. Zamindari and Land Reform ActSection
3
(14)-Nature
of
landagricultural
land-lease
for
running
factory in the year 1950-on non payment
of premium Civil Suit before Civil Court
up to Second Appeal finalized between
the parties-now objection so long the
user of land is not declared otherwise
under provisions of law it will remain
agricultural
land-held-misconceivedeven subsequent suit is barred by
principle of res-judicate.

Held: Para 7

The revisional court has recorded a
categorical finding that in the land a
factory
and
buildings
have
been
constructed and it is no more land. It
ceases to be the land prior to the
commencement of the U.P.Z.A. & L.R. Act
and, therefore, the provision of the
U.P.Z.A. & L.R. Act does not apply and in
the circumstances the revisional court
has rightly held that the nature of the
property
was
not
the
land
for
agricultural purposes and, therefore,
there was no question of referring the
matter to the revenue court for deciding
the nature of the land.
Case law discussed:
1971 R.D. 160, 1992 R.D. 258 (S.C.).

(Delivered by Hon'ble Rajes Kumar, J.)

1. The present writ petition is
directed
against
the
order
of
the
Additional District Judge, Court No. 8,
Gorakhpur, dated 8.9.2009, passed in
Civil Revision No. 158 of 2008, filed
against the order of the Civil Judge (Jr.
Divn.), Gorakhpur, dated 10.1.1996.

2. The brief facts of the case are that
the plaintiff-respondents filed a Suit No.
94 of 1988 claiming relief for the decree
of possession over the property in dispute.
The defendant-petitioner filed a written
statement in the year 1995. The trial court
has framed 12 issues, out of which issue
no. 8 was framed as a preliminary issue to
the effect as to whether the court has
jurisdiction to try the suit. When the trial
court proceeded to decide issue no. 8,
referred herein above, it was felt that it is
necessary to decide whether the property