# Smt. Sneh Sharma v. Regional Asstt. Director of Education (Basic), Agra and others

- **Citation:** (2002) 2 ILRA 588
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-08-07
- **Case number:** Civil Misc. Writ Petition No. 37210 of 1997
- **Bench:** Anjani Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sneh-sharma-v-regional-asstt-director-of-education-basic-agra-and-others-39863
- **Pages:** 4

## Headnote

Sri Pramod Kumar Sharma
S.C.

U.P. Junior High School (Payment of
Salaries
of
Teachers
and
other
employees)
Act
1978-Section
18Transfer of Assistant Teacher from one
aided institution duly approved by the
competent
authority-can
not
be
cancelled without affording opportunity,
without any reason.

Held-Para 7.

A perusal of the order of cancellation of
the transfer since does not disclose any
reason nor it has been disclosed in the
counter affidavit that any fraud or
misrepresentation has been made either
by the institution concerned or by the
petitioner and there being no provision
under rule 18 as argued by the learned
counsel for the petitioner. I see that the
order dated 01.11.1997 suffers from
http://www.allahabadhighcourt.nic.in
2 All] Smt. Sneh Sharma V. Regional Asstt. Director of Education (Basic), Agra and others
589
manifest error of law and thus deserves
to be set aside and is hereby set aside.

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
588
that the appeal preferred by respondent
no. 1 was incompetent."

11. It is against this order dated
06.12.1986 the present revision has been
filed by which the Court below has held
that if the appeal has been filed without
Vakalatnama it is only a mistake, which
can be rectified and has granted 7 days'
time
to
the
plaintiff-opposite
party
Mathura Prasad to remove the aforesaid
irregularity.

12. In my opinion, the Court below
has committed no irregularity. The Court
should
not
decide
the
cases
on
technicalities but decide the case on
merits and do substantial justice. I am
fortified by the judgment of the The
Hon'ble Supreme Court in this regard in
Re-AIR 1956 SC-140 Pratap Singh Vs.
Sri Krishna Gupta.

13. In view of the above position of
law this revision has no force and it has
been filed on hyper technicality and
requires no interference by this Court
under Section 115 of the Code of Civil
Procedure as the issue decided neither
affects the jurisdiction of the Court below
nor the court below has committed any
material irregularity.

14. Therefore, the revision is
dismissed.

15. Since the proceedings in O.S.
No. 64 of 1985 are stayed since 1987, it is
directed that the Court below may decide
the suit expeditiously preferably within 6
months from the date of production of a
certified copy of this order.

16. Let a copy of this judgment be
sent to the Court below for restart of the
hearing without any further dealy.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.08.2002

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 37210 of 1997

Smt. Sneh Sharma

...Petitioner
Versus
Regional Assistant Director of Education
(Basic) , Agra and others ...Respondents

Counsel for the Petitioner:
Sri Ashok Bhushan
Sri H.N. Pandey
Sri Ajay Dubey
Kamini Dubey
C.S.C.

Counsel for the Respondents:
Sri Pramod Kumar Sharma
S.C.

U.P. Junior High School (Payment of
Salaries
of
Teachers
and
other
employees)
Act
1978-Section
18Transfer of Assistant Teacher from one
aided institution duly approved by the
competent
authority-can
not
be
cancelled without affording opportunity,
without any reason.

Held-Para 7.

A perusal of the order of cancellation of
the transfer since does not disclose any
reason nor it has been disclosed in the
counter affidavit that any fraud or
misrepresentation has been made either
by the institution concerned or by the
petitioner and there being no provision
under rule 18 as argued by the learned
counsel for the petitioner. I see that the
order dated 01.11.1997 suffers from
http://www.allahabadhighcourt.nic.in
2 All] Smt. Sneh Sharma V. Regional Asstt. Director of Education (Basic), Agra and others
589
manifest error of law and thus deserves
to be set aside and is hereby set aside.

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

1. The petitioner is working as
Assistant Teacher in recognized senior
Basic School, namely, Shri Narain Das
Vidya
Mandir,
Rajpurajat,
Mathura,
which is a recognized institution within
the meaning of U.P. Basis Education Act
and is also governed by the provisions of
U.P. Junior High Schools (Payment of
Salaries of Teachers and other employees)
Act 1978.

2. The facts giving rise to the filing
of the present writ petition are that a
vacancy
of
assistant
teacher
was
advertised in Sant Sunder Das Junior
High Schools, Bhairo, Belanganj, Agra,
which is also a recognized institution
within the meaning of U.P. Basic
Education Act and U.P. Junior High
Schools (Payment of Salaries of Teacher
and other Employees) Act 1978 also
applies to this institution.

3. Rule 18 of Uttar Pradesh
Recognised Basic Schools (Junior High
Schools) (Recruitment and Conditions of
Service of Teachers) Rules, 1978 provides
for
transfer
of
teachers
from
one
recognized
institution
to
another
institution which is reproduced below:

"18. Transfer:- (1) A permanent
Headmaster or assistant teacher of a
recognized school may, on application in
this behalf, be transferred to another
recognized school in which he may be
lawfully employed under these rules.

(2) Such application shall be given by the
Headmaster or assistant teacher, as the
case may be, to the District Basis
Education Officer through the Manager of
the School from which the teacher is
sought.

(3) The Manager shall along with the
application for transfer, forward copies of
service-book and character roll of such
Headmaster and assistant teacher, as the
case may be, to the District Basic
Education Officer.

(4) No transfer shall take effect unless it is
agreed to by the managements of the
concerned recognized schools and is
approved under Clause (5).

(5) the Approval for the transfer of a
Headmaster
or
assistant
teacher
of
recognized school shall be accorded by -

(i) The District Basic Education Officer
in case of transfer from one school to
another school within the District;
(ii) The Regional Deputy Director of
Education in case of transfer from one
School to another School situated in
different districts but within the same
division;
(iii) Secretary of the Board, in case of
transfer from one school to another school
situated in different divisions."

4. The petitioner pursuant to the
aforesaid rules applied for transfer as
assistant teacher from Shri Narain Das
Vidya Mander, Rajpurajat, Mathura to
Sant Sunder Das Junior High Schools,
Bhairo, Belanganj, Agra. The respondents
by
their
order
dated
05.10.1997
(Annexure - 5 to the writ petition) have
accepted the request of the petitioner -
Smt. Sneh Sharma and transferred her
from Shri Narain Das Vidya Mandir,
Rajpurajat, Mathura to Sant Sunder Das
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
590
Junior High Schools, Bahiro, Belanganj,
Agra. Pursuant to the aforesaid order,
approval was granted by the respondents.
The petitioner joined at Sant Sunder Das
Junior High School, Bhairo, Belanganj,
Agra and started working as assistant
teacher. The Regional Assistant Director
of Education (Basic), Agra vide order
dated 01.11.1997 cancelled the order of
transfer of the petitioner from Shri Narain
Das Vidya Mandir, Rajpurajat, Mathura
to Sant Sunder Das Junior High School,
Bahiro, Belanganj, Agra with immediate
effect. It is this order which the petitioner
has challenged by the means of the
present writ petition.

5. Learned counsel for the petitioner
has argued that before passing of the
aforesaid order dated 01.11.1997, no
opportunity was granted to the petitioner.
The fact has been stated in paragraphs 17
and 18 of the writ petition which have not
been denied by the respondents in their
counter-affidavit. Learned counsel for the
petitioner has further submitted that all
the materials and relevant documents
were produced before them for transfer
from one district to another district but no
reasons, whatsoever, has been stated in
the impugned order.

6.

Learned
counsel
for
the
respondents tried to justify the order dated
01.11.1997 and submitted that as it would
be clear from the advertisement which
was issued for direct recruitment the said
post was reserved for Scheduled Caste
and, therefore, the order of cancellation of
the transfer of the petitioner is justified.
Learned counsel for the respondents has
conceded that the provisions of Rule 18
which is applicable in the present case of
transfer of a teacher nowhere mentions
that any provision of reservation will
apply as the same according to the learned
counsel for the petitioner is applicable
only with regard to direct recruitment and
since according to the learned counsel for
the respondents the post was reserved for
Scheduled Caste the cancellation of the
petitioner's transfer was justified.

7. A perusal of the order of
cancellation of the transfer since does not
disclose any reason nor it has been
disclosed in the counter-affidavit that any
fraud or misrepresentation has been made
either by the institution concerned or by
the petitioner and there being no
provision under Rule 18 as argued by the
learned counsel for the petitioner, I see
that the order dated 01.11.1997 suffers
from manifest error of law and thus
deserves to be set aside and is hereby set
aside.

8. In view of what has been stated
above, the writ petition deserves to be
allowed and is, hereby, allowed. The
order dated 01.11.1997 is set aside. The
respondents
are
restrained
from
interfering
with
the
petitioner's
functioning as assistant teacher in Sant
Sunder Das Junior High Schools, Bhairo,
Belanganj, Agra. Since the impugned
order has been quashed, the consequential
order dated 04.11.1997 (Annexure - 9) to
the writ petition) also deserves to be
quashed and is hereby quashed and the
petitioner is entitled for payment of salary
in accordance with law.
----------
http://www.allahabadhighcourt.nic.in
2 All] M/s Flex Engineering Ltd., NOIDA V. Commissioner of Central Excise, Meerut
591
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD AUGUST 26, 2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE ASHOK BHUSHAN, J.

Central Excise Reference No. 11 of 2001

M/s Flex Engineering Limited, Noida

 ...Applicant
Versus
Commissioner of Central Excise, Meerut

 ...Respondents

Counsel for the Appellant:
Sri A.P. Mathur

Counsel for the Respondents:
Sri S.P. Kesharwani

Centre
Excise
Act
1944
2
(f)
-
Manufacture - Plastic film/poly paper -
user for Trail/Demonstration - can not
be treated as manufacture - termed as
imput.

Held- para 18

In this view of the matter, and having
regard to the scope of Rule 57-A of the
Act, we are unable to accept the
contention
of
the
applicant
that
materials used for testing the fully
finished machines would also be the
materials used in or the relation to them
manufacture of the final product namely,
the extrusion machine. IN the instant
case, we find that Form Fill and Seal
Machineies
used
for
testing
its
performance. Testing performance is not
a process of manufacture and, therefore,
flexible plastic films used for testing the
performance of the machine cannot be
termed as 'inputs' for the purpose of
allowing MODVAT credit of duty paid on
flexible plastic films.
Case Law Discussed:
1990 (80) ELT (Tribunal) 475
2000 (124) ECT 267
1996 (88) ELT 273
2000 (20) ELT 105
1989 (43) ELT 201 (SC)
1989 (40) ELT280 (SC)
1989 SCC (1) 602
1977 (I) ELT (J-199)
1989 (43) ELT 214
1965 STC 563

(Delivered by Hon'ble S.K. Sen, C.J.)

1. Brief facts of the case, inter alia,
are that the applicant - M/s Flex
Engineering
Limited
manufactures
packaging machines of various types
classifiable under Chapter 84 of the
Central Excise Tariff. It is the case of the
applicant that it was availing the benefit
of MODVAT credit on laminated plastic
films and poly papers. Show cause notices
were issued to applicant with regard to
denying the benefit on the above inputs
on the ground that they are used for the
purpose of testing of their final product
'packaging machines' and is not an input
as defined under Rule 52-A of the Central
Excise Rules. The adjudicating authority
denied the benefit of MODVAT credit.
The applicant preferred an appeal, which
too was rejected. The applicant filed
appeals before the Customs, Excise and
Gold
(Control)
Appellate
Tribunal,
Following the earlier order in the case of
the same applicant, the Tribunal, on
17.04.1998, upheld the order passed by
the Commissioner (Appeals). In the
meantime, in regard to the earlier order
court, on 01.07.1997, had directed the
Tribunal to refer questions of law to this
court for opinion. Accordingly, the
following questions of law have been
referred to this Court for opinion:-

1.
"Whether, in the circumstances of
the present case, facts of which are not in
dispute, duties paid on material, namely,