# State of U.P. and others v. Ilam Chand Verma and Ors

- **Citation:** Special Appeal Defective No. 218 of 2013
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-04-23
- **Case number:** Special Appeal Defective No. 218 of 2013
- **Bench:** Uma Nath Singh, Mahendra Dayal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-and-others-v-ilam-chand-verma-and-ors-42875
- **Pages:** 5

## Headnote

High Court Rules chapter VIII Rule 5-
Special
Appeal-against
judgment
of
Single Judge-quashing notification by
Registrar-Cooperative
Societies-appeal
on ground as per law declared by Apex
Court in Prabhodh Verma Case-Writ of
certiorari can not be issued-held-for
ommision of such important question of
law state should file review of petition
before Single Judge-instead of appealliberty given accordingly.

Held: Para-5
On
due
consideration
of
rival
submissions, we are of the view that the
appellant State instead of filing this
Special Appeal, should have filed a
review
petition
in
case
such
an
important question of law has escaped
the notice of the Court. For a profitable
use,
we
deem
it
appropriate
to
reproduce the relevant paragraphs 31
and 50 of the judgment which appear to
be germane for the disposal of the plea
raised herein.

Case Law discussed:
Probodh Verma and others, etc etc. v. State of
U.P. and others and Dal Chand and others,
etc. etc. v. State of U.P. and others, etc.

## Text

1 All Smt. Pushpa and another Vs. Smt. Anshu Chaudhary
467

40. Taking into consideration all
facts and circumstances and the findings
recorded by the Additional Principal
Judge, Family Court, we are of the view
that no error has been committed by the
Court in holding that paramount welfare
of the child shall be in giving her in the
custody of the respondent, the mother. We
do not find any error in the judgment and
order dated 27th February, 2013.

41. The appeal lacks merit and is
dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.04.2013

BEFORE
THE HON'BLE UMA NATH SINGH,J.
THE HON'BLE MAHENDRA DAYAL, J.

Special Appeal Defective No. 218 of 2013

State of U.P. and others ...Petitioners
Versus
Ilam Chand Verma and Ors .Respondents

Counsel for the Petitioners:
C.S.C.

Counsel for the Respondents:
Anurag Srivastava

High Court Rules chapter VIII Rule 5-
Special
Appeal-against
judgment
of
Single Judge-quashing notification by
Registrar-Cooperative
Societies-appeal
on ground as per law declared by Apex
Court in Prabhodh Verma Case-Writ of
certiorari can not be issued-held-for
ommision of such important question of
law state should file review of petition
before Single Judge-instead of appealliberty given accordingly.

Held: Para-5
On
due
consideration
of
rival
submissions, we are of the view that the
appellant State instead of filing this
Special Appeal, should have filed a
review
petition
in
case
such
an
important question of law has escaped
the notice of the Court. For a profitable
use,
we
deem
it
appropriate
to
reproduce the relevant paragraphs 31
and 50 of the judgment which appear to
be germane for the disposal of the plea
raised herein.

Case Law discussed:
Probodh Verma and others, etc etc. v. State of
U.P. and others and Dal Chand and others,
etc. etc. v. State of U.P. and others, etc.
(Delivered by Hon'ble Uma Nath Singh, J)

1. We have heard learned counsel
for the parties and perused the pleadings
of Special Appeal, which arises out of a
judgment dated 18.4.2012, passed by
learned Single Judge, in Writ Petition No.
2125 (S/S) of 2006.

2. Learned counsel for the State,
Smt. Sangita Chandra submitted that the
Service Rules sought to be quashed had
been notified in the Official Gazette,
therefore, it was not in the nature of an
office/ government order passed by the
Registrar of the Co-operative Societies. It
is also a submission of learned counsel
that the writ of certiorari cannot be
exercised for quashment of Statutory
Service Rules notified in the Official
Gazette
and
rather
such
statutory
provisions can only be declared as ultra
vires
qua the
Parent
Act
or
the
Constitution of India.

3. Learned counsel for the State has
placed reliance on a Three Judge Bench
Judgment of the Hon'ble Apex Court
reported in AIR 1985 Supreme Court 167
(Prabodh Verma and others, etc. etc. v.
State of U.P. and others and Dal Chand
468 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
and others, etc. etc. v. State of U.P. and
others, etc.) in support of her contention.

4. On the other hand, learned
counsel Shri Manish Sharma, appearing
for respondent no.1 tried to justify the
order passed by the learned Single Judge.
We are informed that in respect of other
private respondents, notice has been
accepted by one Shri Anurag Srivastava,
learned counsel but he is not present to
assist the Court nor is there any request on
his behalf for adjournment of the matter.

5. On due consideration of rival
submissions, we are of the view that the
appellant State instead of filing this
Special Appeal, should have filed a
review petition in case such an important
question of law has escaped the notice of
the Court. For a profitable use, we deem it
appropriate to reproduce the relevant
paragraphs 31 and 50 of the judgment
which appear to be germane for the
disposal of the plea raised herein.

"30. A writ of certiorari can never be
issued to call for the record or papers and
proceedings of an Act or Ordinance and
for quashing such Act or ordinance. The
writ of certiorari and the writs of habeas
corpus, mandamus, prohibition and quo
warranto were known in English common
law as "prerogative writs". "Prerogative
writs,' are to be distinguished from "writs
of right" also known as "writs of course".
Writs issued as part of the public
administration of justice are called "writs
of right" or "writs of course" because the
Crown is bound by Magna Carta of 1215
to issue them., as for instance, a writ to
commence an action at common law.
Prerogative writs are (or rather, were) so
called because they are issued by virtue of
the Crown's prerogative, not as a matter
of right but only on some probable cause
being shown to the satisfaction of the
court why the extraordinary power of the
Crown should be invoked to render
assistance to the party. The common law
regards the Sovereign as the source. Or
fountain of justice, and certain ancient
remedial processes of an extraordinary
nature, known as prerogative writs, have
from the earliest times issued from the
Court of King's Bench in which the
Sovereign
was
always
present
in
contemplation of law. (See Jowitt's
"Dictionary of Law" vol.2, p. 1885, and
Halsbury's "Laws of England", 4th ed.,
vol. 11, para. 1451, f.n.3).

50. To summarize our conclusions:

(1) A High Court ought not to hear
and dispose of a writ petition under
Article 226 of the Constitution without the
persons who would be vitally affected by
its
judgment
being
before
it
as
respondents or at least some of them
being before it as respondents in a
representative capacity if their number is
too large to join them as respondents
individually, and, if the petitioners refuse
to so join them, the High Court ought to
dismiss the petition for non- joinder of
necessary parties.

(2) The Allahabad High Court ought
not to have proceeded to hear and dispose
of Civil Miscellaneous Writ No. 9174 of
1978-Uttar Pradesh Madhyamik Shikshak
Sangh and Others v. State of Uttar
Pradesh and Others-without insisting
upon the reserve pool teachers being
made respondents to that writ petition or
at least some of them being made
respondents thereto in a representative
capacity as the number of the reserve
pool teachers was too large and, had the
1 All State of U.P. and others Vs. Ilam Chand Verma and others
469
petitioners refused to do so, to dismiss
that writ petition for non-joinder of
necessary parties.

(3) A writ of certiorari or a writ in
the nature of certiorari cannot be issued
for declaring an Act or an Ordinance as
unconstitutional or void. A writ of
certiorari or a writ in the nature of
certiorari can only be issued by the
Supreme Court under Article 32 of the
Constitution and a High Court under
Article 226 of the Constitution to direct
inferior courts, tribunals or authorities to
transmit to the court the record of
proceedings pending therein for scrutiny
and, if necessary, for quashing the same.

(4) Where it is a petitioner's
contention that an Act or Ordinance is
unconstitutional or void, the proper relief
for the petitioner to ask is a declaration to
that effect and if it is necessary, or
thought
necessary
to
ask
for
a
consequential relief, to ask for a writ of
mandamus or a writ in the nature of
mandamus or a direction, order or
injunction restraining the concerned State
and its officers from enforcing for giving
effect to the provisions of that Act or
Ordinance.

(5) Though a High Court ought not
to dismiss a writ petition on a mere
technicality or because a proper relief has
not been asked for, it should not,
therefore, condone every kind of laxity,
particularly where the petitioner is
represented by an advocate.

(6) The Allahabad High Court,
therefore, ought not to have proceeded to
hear and dispose of the said Civil
Miscellaneous Writ No. 9174 of 1978
without insisting upon the petitioners
amending the said writ petition and
praying for proper reliefs.

(7) By reason of the provisions of
section 30 of the General Clauses Act,
1897, read with clauses (54) and (61) of
section 3 thereof, it would not be wrong
phraseology,
though
it
may
sound
inelegant, to refer to a provision of an
Ordinance promulgated by the President
under Article 123 of the Constitution or
prior to the coming into force of the
constitution of India, by the GovernorGeneral under the Indian Councils Act,
1861, or the Government of India Act,
1915, or the Government of India Act,
1935, as "section" and to a sub-division of
a section, numbered in round brackets, as
sub-section".

(8) Similarly, by reason of the
provisions of section 30 of the Uttar
Pradesh General Clauses Act, 1904, read
with clauses (40) and (43) of section 4
thereof,
it
would
not
be
wrong
phraseology,
though
it
may
sound
inelegant, to refer to a provision of an
Ordinance promulgated by the Governor
of Uttar Pradesh under Article 213 of the
Constitution or prior to the coming into
force of the Constitution of India, by the
Governor of the United Provinces under
the Government of India Act, 1935, as
"section" and to a sub-division of a
section, numbered in round brackets, as
"sub-section".

(9) Neither the Uttar Pradesh High
Schools
and
Intermediate
Colleges
(Reserve Pool Teachers) Ordinance, 1978
(U.P. Ordinance No. 10 of 1978), nor the
Uttar
Pradesh
High
Schools
and
Intermediate Colleges (Reserve Pool
Teachers) Second) Ordinance, 1978 (U.P.
Ordinance No. 22 of 1978), infringed
470 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Article 14 or Article 16(1) of the
Constitution or was unconstitutional or
void.

(10) The reserve pool teachers
formed a separate and distinct class from
other applicants for the posts of teachers
in recognized institutions.

(11)
The
differentia
which
distinguished the class of reserve pool
teachers
from
the
class
of
other
applicants for the posts of teachers in
recognized institutions was the service
rendered by the reserve pool teachers to
the State and its educational system in a
time of crisis.

(12) The above differentia bore a
reasonable and rational nexus or relation
to the object sought to be achieved by
U,P. Ordinances Nos, 10 and 22 of 1978
read with the Intermediate Education Act,
1921, namely, to keep the system of High
School and Intermediate Education in the
State of Uttar Pradesh functioning
smoothly without interruption so that the
students may not suffer a detriment.

(13) The preferential treatment in the
matter of recruitment to the posts of
teachers in the recognized institutions
was, therefore not discriminatory and did
not offend Article 14 of the Constitution.

(14) As the above two classes were
not similarly circumstanced. there could
be no question of these classes of persons
being entitled to equality of opportunity in
matters
relating
to
employment
guaranteed by Article 16(1) of the
Constitution
and
the
preferential
treatment given to the reserve pool
teachers was, therefore not violative of
Article 16(1) of the Constitution.

(15) The case of Uttar Pradesh
Madhymik Shikshak Sangh and Others v.
State of Uttar Pradesh and Others was
wrongly decided by the Allahabad High
Court and requires to be overruled.

(16) The termination of the services
of the reserve pool teachers following
upon the judgment of the Allahabad High
Court was contrary to law and the order
dated May 21, 1979 of the Government of
Uttar Pradesh and the order dated May
29, 1979, of the Additional Director of
Education, Uttar Pradesh, were also bad
in law.

(17) Each of the reserve pool
teachers
had
a
right
under
U.P.
Ordinance No. 10 of 1978 as also under
U.P Ordinance No. 22 of 1978 to be
appointed to a substantive vacancy
occurring in the post of a teacher in a
recognized institution which was to be
filled by direct recruitment.

(18) Each of the reserve pool
teachers who had already been appointed
and was continuing in service by reason
of the stay orders passed either by the
Allahabad High Court or by this Court is
entitled to continue in service and to be
confirmed in the post to which he or she
was appointed with effect from the date
on which he or she would have been
confirmed in the normal and usual
course.

(19) Those reserve pool teachers
who were not appointed as provided by
U.P. Ordinance No. 10 of 1978 or U.P.
Ordinance No. 22 of 1978 were not so
appointed because of the interim orders
passed by the Allahabad High Court and
the judgment of the High Court in the
1 All State of U.P. and others Vs. Ilam Chand Verma and others
471
Sangh's case. In view of the fact that this
Court has held that the Sangh's case was
wrongly decided by the High Court, the
injustice done to these reserve pool
teachers requires to be undone.

(20) In view of the fact that the
vacancies to which these reserve pool
teachers would have been appointed have
already been filled and in all likelihood
those so appointed have been confirmed
in their posts, to appointed these reserve
pool teachers with effect from any
retrospective date would be to throw out
the present incumbents from their jobs for no
fault of theirs. It will, therefore, be in
consonance with justice and equity and fair
to all parties concerned if the remaining
reserve pool teachers are appointed in
accordance with the provisions of U.P.
Ordinance No. 22 of 1978 to substantive
vacancies occurring in the posts of teachers
in recognized institutions which are to be
filled by direct recruitment as and when each
such vacancy occurs.

(21) This will equally apply to those
reserve pool teachers whose services were
terminated and who had not filed any writ
petition or who had filed a writ petition but
had not succeeded in obtaining a stay order,
as also to those reserve pool teachers who
had not been appointed in view of the interim
orders passed by the High Court and
thereafter by reason of the judgment of the
High Court in the Sangh's case and who
have not filed any writ petition.

6. Thus, the special appeal is
disposed of with liberty to appellant State
to file a review petition within a week
before
the
learned
Single
Judge
irrespective of the delay occasioned on
account of filing of this Special Appeal.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.04.2013

BEFORE
THE HON'BLE UMA NATH SINGH,J.
THE HON'BLE Dr. SATISH CHANDRA, J.

Special Appeal No. 304 of 2012

Ram Kishore And Ors. ...Petitioners
Versus
State of U.P. & Ors.
. ..Respondents

Counsel for the Petitioners:
Bulbul Godiyal Madhumita Bose
Counsel for the Respondents:
C.S.C.

Constitution of India, Art. 226- Minimum
Basic
Pay-entitlement-daily
wager
working in Trade Tax department w.e.f
1994
Although
not
entitled
for
regularization under Rule-but direction
of Single Judge to pay D.A.-considering
percentage change general price index
over time neutralize the prices index also
effects reflects erosion in purchasing
power-D.A. and no other allowances or
increment payable held admissible to
those daily wagers also.

Held: Para-20
It may be mentioned that in India, the
Dearness Allowance has a history dating
back of World War II. At that time, many of
the
lower-paid
employees
received
Dearness Allowance Based on their wages
or salaries. Many changes to Dearness
Allowance and its computations have
occurred over the last so many years,
according to both private and government
studies. For example, now a days, to
calculate the D.A., 12 months average of
pay and a set index level is considered to
get the percentage increase in price/cost of
living. Dearness Allowance is paid on a
range of base-pay levels. At the time of
revision
of
the
pay
scale,
the
Pay