# State of U.P. and others v. Gaya Ram

- **Citation:** (2009) 1 ILRA 7
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-05-28
- **Case number:** Special Appeal No. 1858 of 2008
- **Bench:** Ashok Bhushan, Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-and-others-v-gaya-ram-41319
- **Pages:** 8

## Headnote

Sri G.P. Gupta

Basic Education Regulation_Regulation44,
46-Retirement
benefits-petitioner
working as Class IV-employee in the
institution run by Basic Shiksha Parishad
retired after completing 9 years serviceclaimed
retirement
benefit-learned
Single Judge following the judgment of
Hans Raj Pandey Case allowed the
petition-held-Hans Raj Pandey being
appointed as fixed salary basis wrongly
counted for pension purpose-hence no
good law-in regulation except regular or
temporary appointment no provision of
fixed salary-hence working of petitioner
prior
to
regularization
can
not
be
counted for pension purposes-However
petitioner may approach before state
government for exemption of period
which fall short in 10 years.

Held: Para 15
8 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
There is a difference in the nature of the
appointment of temporary employee visa-vis an employee who is appointed on
fixed salary. A temporary appointment
can be made against a permanent or
temporary
post,
whereas
for
the
appointment on fixed pay there is no
requirement of a post. Thus there is a
major
difference
in
the
nature
of
appointment
of
two
classes
of
employees. Thus, the judgment in the
case of Hans Raj Pandey (supra), in so
far as it holds that the period of service
rendered
on
fixed
pay,
prior
to
regularization, shall also be added in his
qualifying service, cannot be upheld.
Case law discussed:
(2002) 3 UPLBEC 2521

## Text

1 All] State of U.P. and others V. Gaya Ram
7
continuation of the suit proceeding. The
lower appellate court on the review
application
of
the
appellant
has
modified/reviewed the earlier order dated
29.3.2008 to the extent of mentioning 'the
suit' instead of 'Appeal' in the order dated
28.5.2008 and it is well settled that the
appeal is the continuation of the suit,
therefore,
there
is
no
substantial
difference between the earlier order dated
29.3.2008 and the subsequent order dated
28.5.2008 passed by lower appellate
court. In fact when the review application
has been allowed the original order dated
29.3.2008 has merged in the subsequent
order passed in the review application
dated 28.5.2008. Now the effect will be
that at present the suit has abated under
Section 5 (2) of the U.P. Consolidation of
Holdings Act. Since the order for abating
the suit has been passed in the review
application and the application has been
allowed under Rule 4 Order 47 of the
C.P.C., therefore, the question would arise
that what is the remedy available to the
appellant to challenge the order dated
28.5.2008
passed
in
the
Review
application.

26. The Code of Civil Procedure is
self contained code and there is a remedy
for the appellant for filing an appeal from
such order under Order 43 Rule 1 (w) of
the C.P.C. Therefore, the appellant can
file First Appeal From Orders under
Order 43 Rule 1 (w) of the C.P.C.

27. The Court has taken a view that
no Second Appeal is maintainable against
the so called judgment and decree dated
29.3.2008, therefore, there is no occasion
to decide the objection no.1 as reported by
the Stamp Reporter with regard to the
limitation for filing Second Appeal. The
appellant is given liberty to file an
application for conversion of this Second
Appeal into F.A.F.O. In case such
application is filed by the appellant within
a week from the date of delivery of the
order, the matter may be placed as fresh
before the appropriate court dealing with
First Appeal From Orders.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.12.2008

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE ARUN TANDON, J.

Special Appeal No. 1858 of 2008

State of U.P. and others
...Appellants
Versus
Gaya Ram

 ...Respondents

Counsel for the Appellants:
Sri C.K. Rai

Counsel for the Respondents:
Sri G.P. Gupta

Basic Education Regulation_Regulation44,
46-Retirement
benefits-petitioner
working as Class IV-employee in the
institution run by Basic Shiksha Parishad
retired after completing 9 years serviceclaimed
retirement
benefit-learned
Single Judge following the judgment of
Hans Raj Pandey Case allowed the
petition-held-Hans Raj Pandey being
appointed as fixed salary basis wrongly
counted for pension purpose-hence no
good law-in regulation except regular or
temporary appointment no provision of
fixed salary-hence working of petitioner
prior
to
regularization
can
not
be
counted for pension purposes-However
petitioner may approach before state
government for exemption of period
which fall short in 10 years.

Held: Para 15
8 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
There is a difference in the nature of the
appointment of temporary employee visa-vis an employee who is appointed on
fixed salary. A temporary appointment
can be made against a permanent or
temporary
post,
whereas
for
the
appointment on fixed pay there is no
requirement of a post. Thus there is a
major
difference
in
the
nature
of
appointment
of
two
classes
of
employees. Thus, the judgment in the
case of Hans Raj Pandey (supra), in so
far as it holds that the period of service
rendered
on
fixed
pay,
prior
to
regularization, shall also be added in his
qualifying service, cannot be upheld.
Case law discussed:
(2002) 3 UPLBEC 2521

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Sri C.K. Rai, learned
Standing Counsel for the appellants and
Sri G.P. Gupta, learned counsel appearing
for the respondent.

2. This is an intra Court appeal
against the judgment and order of learned
Single Judge dated 05th August, 2008
whereby the writ petition filed by the
respondent has been allowed by directing
payment of pension w.e.f. 03.12.2004
following the judgment of learned Single
Judge in the case of Hans Raj Pandey vs.
State of U.P.; 2007(2) UPLBEC 2073.

3. Against the said judgment the
State of U.P., Finance and Account
Officer, Basic Education Officer as well
as Secretary, Basic Shiksha Parishad,
Allahabad have filed this appeal. Parties
agree that the appeal be disposed of
without calling for any further affidavits.

4. The brief fact necessary for
deciding the issues raised in the appeal
are that: the respondent petitioner was
appointed as a Class-IV employee in an
institution of the U.P. Basic Shiksha
Parishad.
Initial
appointment
of
respondent was on fixed emolument. By
an order dated 30th November, 1995 the
services
of
the
respondent
were
regularized in the pay scale of Rs.750940. The respondent retired from service
on 31.12.2004. His claim with regard to
payment of pension was forwarded by the
Basic Shiksha Adhikari. The Finance and
Account
Officer,
Basic
Education,
Sonebhadra on 02nd June, 2005 wrote a
letter to the Basic Shiksha Adhikari
pointing
out
that
the
services
of
respondent prior to his regularization i.e.
30th November, 1995 were on fixed
salary, therefore, cannot be treated as
qualifying
service.
The
period
of
qualifying service for pension is only 09
years, hence he is not entitled for pension.
The respondent challenged the said order
by means of the writ petition, praying for
quashing the order of the Finance and
Account
Officer,
Basic
Education,
Sonebhadra and a mandamus for payment
of pension w.e.f. 31.12.2004.

5. In the writ petition a counter
affidavit was filed by the Finance and
Account Officer. In paragraph 3 of the
counter affidavit it was clearly stated that
appointment of the petitioner-respondent
w.e.f. 01st August, 1973 was as a Peon on
fixed emolument and in such capacity
respondent continued till 30th November,
1995. Thereafter he was regularized in the
pay
scale
of
750-940
w.e.f.
30th
November, 1995. It has been stated that
the services of the respondent prior to 30th
November, 1995 being on fixed salary
were not to be taken into account for
pension and the respondent, having not
completed 10 years of qualifying service,
is not entitled for pension.
1 All] State of U.P. and others V. Gaya Ram
9
6. The learned Single Judge by the
impugned judgment has allowed the writ
petition relying on the judgment of this
Court in the case of Hans Raj Pandey
(supra).

7. Sri C.K. Rai, learned counsel for
the appellant challenging the judgment
contended that the services of respondent
on fixed emolument were not to be added
for determination of qualifying period for
pension, the regular services of the
respondent being less than 10 years, he is
not eligible for pension. Sri Rai submits
that provisions of Regulations 44 and 45
were applicable only to the teachers while
the respondent, who was only a Class IV
employee, was to be dealt with under
Regulation 46, which provide that only
after completion of 10 years of eligible
service, an employee becomes entitled for
pension. He further contended that the
judgment in the case of Hans Raj Pandey
(supra) did not examine that the services
of an employee on fixed emolument are
not to be add in the eligible period for
pension. He submits that the decision in
the case of Hans Raj Pandey (supra),
which is based on earlier judgment of this
Court in the case of Shakuntala @
Brahmo Devi (Smt.) vs. Director of
Pension; (2002) 3 UPLBEC 2521, is not
applicable in the case of fixed pay
employees. He clarifies that the judgment
in the case of Shakuntala (supra) was in
respect of a temporary employee and in
that context the Court has held that the
temporary employees, who completed 10
years of service, are entitled for pension
by virtue of the Government Order dated
01.07.1989.

8.

Learned
counsel
for
the
respondent
supported
the
impugned
judgment and contended that the services
of the respondent prior to 30th November,
1995 have also to be treated as temporary.
He submits that he was paid fixed salary
but at the initial of the scale prescribed by
the State Government, which was revised
with every revision of the pay scale. He
submits that the judgment in the case of
Hans Raj Pandey (supra) is fully
applicable in the facts of the present case
and the earlier period of service is liable
to be added for the purposes of pension.
He further contends that Regulations 44
and 45 also become applicable to the
Class-IV employee in view of Regulation
No. 1 of Chapter 5 of the Regulations
framed under the U.P. Basic Education
Act, 1972.

9.

We
have
considered
the
submissions and perused the records.

10. A Class-IV employee working
under the control of Basic Shiksha
Parishad, having rendered 10 years'
qualifying service, is eligible for grant of
pension. There is no dispute to the
entitlement of a Class-IV employee who
has put in 10 years of qualifying service.
The issue in the present case is as to
whether the period of service rendered by
the respondent prior to 30th November,
1995 can be treated as qualifying service.
According
to
Regulation
44,
the
temporary and officiating appointment
can be added, if on the same post or
another
post the person has been
confirmed subsequently, as qualifying
service. The said Regulation 44 (Kha)
does not help the respondent since the
appointment of the respondent cannot be
termed as temporary or officiating. The
appointment of respondent was on fixed
emoluments.
10 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
11. Sri C.K. Rai, learned counsel for
the appellant has brought to our notice a
Government Order dated 08th August,
1994, whereby recommendation of Basic
Shiksha Parishad for giving the benefit of
general provident fund, group insurance
and pension to the fixed pay Class-IV
employee was turned down by the
Government on the ground that since the
fixed pay employees are not appointed
against any post, they cannot be treated to
be regular employee.

12. The judgment in the case of
Hans Raj Pandey (supra), on which much
reliance has been placed by the learned
counsel for the respondent, relied on
earlier judgment in the case of Shakuntala
(supra). The judgment in the case of
Shakuntala is on the facts where the
husband of the petitioner was employed
as Panchayat Mantri on 12th August,
1958. Subsequently the post of Panchyat
Mantri was designated as Gram Vikas
Adhikari.
The
said
employee
was
compulsory retired on 21.12.1992. In that
context the question arose qua payment of
pension. In the counter affidavit, filed in
that case, it was stated that the said
employee was a temporary government
servant. This Court interpreting the Civil
Services
Regulation
as
well
as
Government Order dated 01st July, 1989
took a view that a temporary government
servant, who has rendered 10 years
service as such, is also entitled for the
pension. The relevant paragraphs of the
judgment in the case of Shakuntala
(supra), as has been relied and quoted in
the judgment of Hans Raj Pandey's case,
read as follows:

"11. From the aforesaid guidelines it
is clear that the said guidelines are not an
independent provision in force but the
said guidelines have been issued for
guidance
of
pension
sanctioning
authority. Thus the consequence of the
Government Order dated 1.7.1989 has to
be looked into while deciding as to
whether
the
temporary
Government
Servant compulsory retired is entitled or
not entitled for the pensionary benefits. As
observed above the aforesaid Government
Order was issued with intent and object of
Government
extending
pensionary
benefits
to
temporary
Government
Servants who have completed ten years of
regular service. The provisions of Rule
56(c) of Fundamental Rules has clearly
provided that notwithstanding anything
contained in clause (a) or clause (b), the
Appointing Authority may, at any time, by
notice
to
any
Government
Servant
whether permanent or temporary, without
assigning any reason, require him to
retire after he attains the age of fifty
years.......
Thus,
the
provisions
of
Fundamental Rule 56 are applicable both
on permanent and temporary employees
as noted above, sub-rule (e) of Rule 56
mandates grant of retiring pension to
every Government Servant who retires or
is required or allowed to retire under this
rule. The opening line of Rule 56(e) are of
significance which provides .... retiring
pension shall be payable. Thus, the
intendment of Rule 56(e) is to provided
retirement pension to every Government
Servant who retires or is required to
retire under Rule 56. Thus, the intendment
of statutory Rule 56(e) is to extend benefit
of retiring pension to both category of
person i. e. , persons compulsory retired
or persons voluntary retired. From the
above intendment of rule it is clear that
no distinction or discrimination has been
maintained with regard to payment of
retiring pension to persons voluntary
retired or compulsory retired. Thus, by
1 All] State of U.P. and others V. Gaya Ram
11
Government Order dated 1.7.1989 the
temporary
Government
Servant
compulsory retired cannot be excluded
from benefits of retiring pension. When
the statutory Rule i. e., 56(e) does not
maintain any distinction with regard to
payment of retiring pension to person
compulsory retired and voluntary retired,
no such classification can be created by a
Government Order, which is an executive
order. The object of the Government
Order as noted above was to extend
pensionary
benefits
to
temporary
Government Servants who have rendered
ten years regular service. Thus, the
persons compulsory retired cannot be
excluded from the pensionary benefits and
if it is accepted that the Government
Order dated 1.7.1989 creates such
classification then the said classification
will be arbitrary and unreasonable. It is,
thus, held that the benefit of Government
Order dated 1.7.1989 is also available to
the temporary Government Servants who
are compulsory retired. There is no
rational basis for any such classification
nor there can be any valid object for such
classification.
12. Learned Standing Counsel Sri Ajay
Bhanot has laid much emphasis on the
words "nl o"kZ dh fu;fer lsok " as used in
the Government Order dated 1.7.1989.
The submission of the learned Standing
Counsel as that the petitioner was only
temporary Government Servant hence he
cannot be said to have rendered regular
ten years service; hence he is not entitled
for the benefit of Government Order dated
1.7.1989. The words "nl o"kZ dh fu;fer lsok iw.kZ
dj yh gks A" used in the Government Order
dated 1.7.1989, means completion of ten
years regular service. Words 'regular
service' has not been defined in the
Government Order. From a reading of the
Government Order it is clear that the
word "ten years regular service" has been
referred to the service rendered and not
to the status of employee, an employee
substantively appointed and permanent is
automatically entitled for pension. The
Government Order dated 1.7.1989 does
not contemplate ten years substantive
service. The words "regular service" used
in
the
Government
Order
is
not
anonymous
to
substantive
service.
Admittedly the benefit by Government
Order is to be extended to temporary
Government Servant. The temporary
Government Servant cannot be said to
have substantive or regular service. Thus,
the words "regular service" used in the
Government Order dated 1.7.1989 has
not been used as specifying he capacity or
status of its holder rather the words
"regular service" has been used to denote
and
specify
the
nature
of
service
rendered. The emphasis is that service
should be regular. While defining the
word "regular" the Apex Court is AIR
1980 Supreme Court 1464, Mrs. Raj
Kanta v. The Financial Commissioner,
Punjab
and
another,
has
held
in
paragraph 10 as under:
"To begin with, the word "regular" is
derived from the word "regular" which
means 'rule" and its first and legitimate
signification, according to Webster, is
conformable to a rule, or agreeable to an
established rule, law, or principle to a
prescribed mode. In Words and Phrases
(Vol. 36-A, P. 241) the word "regular' has
been defined as steady or uniform in
course practice or occurrence, etc. and
implies conformity to a rule, standard, or
pattern. It is further stated in the said
Book that 'regular' means steady or
uniform
in
course,
practice,
or
occurrence, not subject to unexplained or
irrational variation. The word "regular"
means in a regular manner, methodically,
12 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
in due order. Similarly, Webster's New
World Dictionary defines 'regular' as
'consistent or habitual in action' not
changing, uniform, conforming to a
standard or to a generally accepted rule
or mode of conduct."
14. Government Order dated 1.7.1989
meant ten years of temporary Government
Servant should be regular in nature
meaning thereby that if the temporary
Government Servant has performed his
duties irregularly i.e., with gaps of years,
his service may not be treated to be
regular. Thus, the contention of the
learned Standing Counsel that the words
"regular service" used in the Government
Order means substantive service or
service rendered by an employee in
regular capacity cannot be accepted. Sri
Som
Dutt
Sharma
had
admittedly
rendered 34 years service and District
Panchayat Raj Officer who is Appointing
Authority has already recommended for
grant of pensionary benefits by holding
that his entire 34 years' service qualify for
pension. In view of the above, Sri Sharma
had completed ten years of regular
service
as
contemplated
in
the
Government Order dated 1.7.1989."

13. The judgment of Shakuntala's
case was thus on different facts where the
status of the employee as temporary was
not denied. In Hans Raj Pandey's case
also the Court noticed that petitioner was
a Class-IV employee on the fixed pay,
who was subsequently regularized and
after regularization he had not completed
ten years of service.

14. In Hans Raj Pandey's case the
employee was appointed on 06.02.1970
and was regularized on 15.10.1996.
Subsequently he retired after obtaining
the age of superannuation on 30th June,
2002. He had rendered six years regular
service. Learned Single Judge although
noticed that the employee was appointed
on fixed pay but the consequence of being
on fixed pay was not considered in its true
prospective and the judgment in the case
of Shakuntala (supra) was relied for
giving benefit to the said employee. In
paragraph 14 of the said judgment the
learned Single Judge observed that it has
not
been
disputed
that
nature
of
appointment of petitioner was temporary
in nature. Learned Single Judge, in
paragraph 3 having noticed that he was a
fixed pay employee, proceeded to decide
the case with an observation that nature of
appointment was temporary.

15. There is a difference in the
nature of the appointment of temporary
employee vis-a-vis an employee who is
appointed on fixed salary. A temporary
appointment can be made against a
permanent or temporary post, whereas for
the appointment on fixed pay there is no
requirement of a post. Thus there is a
major
difference
in
the
nature
of
appointment of two classes of employees.
Thus, the judgment in the case of Hans
Raj Pandey (supra), in so far as it holds
that the period of service rendered on
fixed pay, prior to regularization, shall
also be added in his qualifying service,
cannot be upheld.

16. Learned counsel for the
respondent submits that in the servicebook
of
the
petitioner
the
word
"temporary" has been mentioned, he was
a temporary employee. Petitioner has also
produced photo copy of the service-book,
which we have perused. From the perusal
of the service-book it is clear that the
respondent was initially appointed on
fixed emolument of Rs.165/- per month
1 All] State of U.P. and others V. Gaya Ram
13
and the said fixed emolument was
subsequently increased w.e.f. 01.01.1986
to Rs.750/-, which emolument was paid
till he was regularized. While fixing the
scale w.e.f. 01.01.1986 it has been
mentioned that his salary was Rs.750/-. In
the order dated 02.06.2005 the Finance
and Account Officer has also noted that
the respondent, prior to regularization,
was working on fixed pay of Rs.750/-.

17. In view of the aforesaid, the
contention
that
respondent
was
a
temporary employee cannot be accepted.

18. At this stage learned counsel for
the respondent contended that by virtue of
Regulation 45, the controlling authority
have been given power to condone the
period up to six months in qualifying
service.

19. In the present case the
respondent, after being regularized on
30th November, 1995, retired on 31st
December, 2004. He has rendered more
than 9 years service. The controlling
authority has been empowered to exempt
a period up to six months only. We are of
the view that this is a fit case in which the
Basic Shiksha Adhikari-appellant no. 4
may recommend the claim of the
respondent for exemption of period,
which falls short of 10 years period, to the
State Government-appellant no. 1.

20. In view of the aforesaid the
judgment and order of the learned Single
Judge dated 05.08.2008 is modified by
issuing a direction to Secretary, Basic
Shiksha Parishad to forward the claim of
respondent petitioner for exemption of the
period of the service to the extent it falls
short of 10 years for payment of pension.
Respondent
No.
1
may
take
an
appropriate decision regarding the retiral
benefits to be paid to the respondent in
accordance
with
law.
Necessary
recommendation shall be forwarded by
the authority within one month from
today and the State Government shall take
appropriate
decision
expeditiously,
preferably within four months.

21. Before we close the order it is
necessary to observe that the distinction
between a fixed pay appointee and a
temporary appointee for denial of the
benefit of service rendered as such, as
indicated by the Government Order dated
08th August, 1994, is that fixed pay
employee are not employed against any
post.

22. Counsel for the respondent
before us has contended that respondent
was appointed against a post. Substantial
material has not been brought on the
record of the writ petition for this Court to
come to a definite conclusion as to
whether the respondent, who was engaged
on fixed pay, was employed against a post
or not.

23. It is open for the State
Government to obtain necessary reports
with regard to the fact as to whether the
respondent was appointed against a post
or not. If it is found that he was appointed
against a post, Government may further
consider the question of treating the
services rendered on fixed pay as the
qualifying service.

24.

With
the
aforesaid
observations/directions
the
appeal
is
disposed of. The judgment and order of
the learned Single Judge is modified
accordingly.
---------
14 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.09.2008

BEFORE
THE HON'BLE VIJAY KUMAR VERMA, J.

Criminal Misc. Restoration/Recall
Application No. 166376 of 2007
In
(Criminal Revision No. 4693 of 2006)

Mithaee Lal
 ...Applicant/revisionist
Versus
State of U.P. & others ...Opposite parties

Counsel for the Applicant:
Sri Shekhar Srivastava

Counsel for the Respondents:
Sri Dashrath Lal
A.G.A.

Code of Criminal Procedure-Section 482Criminal Revision-dismissed in defaultrecall application-objected provision of
order 9 rule (4) (a) (13) and Order 41
Rule 19 C.P.C. not applicable in Criminal
proceeding-held-No
provision
of
dismissing criminal revision in absence
of counsel-such error can be corrected
by
exercising
inherent
power-both
orders dismissal of revision in default as
well as order on merit in absence of
counsel can be recalled by either the
session court or by High Court.

Held: Para 11 & 17

Therefore, keeping in view the law laid
down in above mentioned cases, there is
no legal impediment for this Court to
recall the order dated 30.03.2007 passed
in criminal revision no. 4693 of 2006.

Therefore,
having
regard
to
the
observations made in the cases referred
to above, the order dismissing criminal
revision in default or non prosecution as
well as the order deciding the revision on
merit in absence of any or both parties
can be recalled in exercise of inherent
powers not only by the High court, but
by the Court of Session also.
Case law discussed:
2007 (59) ACC 788 (SC), 1958 ALJ 389,
Faridabi (1986) 2 Kant LJ 65, (1995 Crl L.J.
2319, AIR 1959 Allahabad 315, AIR 1987
Rajasthan 83, AIR 1981 Supreme Court 1156,
1999 (39) ACC 889, 2005(52) ACC 372, 2006
(55) ACC 541

(Delivered by Hon'ble Vijay Kumar Verma, J.)

"Whether criminal revision can be
dismissed in default or non-prosecution
and whether such order can be recalled"
are two cardinal questions that fall for
consideration
in
this
restoration
application, by means of which, the order
dated 30.03.2007 passed in criminal
revision no. 4693 of 2006 Mithaee Lal vs.
State of U.P. and others is sought to be
recalled.

2. From the record, it transpires that
criminal revision referred to above was
listed on 30.03.2007. When the case was
called out, the counsel of the revisionist
was not present even in the revised list.
Hence, Hon'ble Vinod Prasad, J. passed
the following order:-

"List is revised. Even in the revised
list, learned counsel for the revisionist is
not present.
This revision is dismissed for non
prosecution.
Interim
order
dated 24.08.2006
stands vacated."

3. Prayer to recall above mentioned
order
has
been
made
in
this
restoration/recall application, which is
accompanied
by
the
affidavit
of
revisionist. No counter affidavit has been