# State Of U.P. & Ors v. Shere Azam & Anr

- **Citation:** (2016) 8 ILRA 1024
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-16
- **Bench:** Dilip B Bhosale, C.J. Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-shere-azam-anr-44111
- **Pages:** 6

## Headnote

any manner by clause 5 of a Government Order dated 29 October 2013. Clause 5 of the said Government
order mandated that vacancies in the Class IV cadre of the employees of Madarsas could be filled only by way
of outsourcing. The original petitioner claims that he had been appointed by the second respondent as a peon
on 27 March 2013. It was contended in the writ petition that since the petitioner has come to be appointed by
the second respondent prior to the promulgation of the Government Order dated 29 October 2013, the
approval to his appointment could not be withheld.

"Petitioner claims to be selected as Peon in Madarsa Darul Uloom (Niswan) Mau, district Mau (for short, the
"Institution"). The Committee of Management of the Institution sent the papers relating to selection to the
District Minority Welfare Officer to consider the papers for approval of the selected person. The
Inspector/Registrar, Board of Madarsa Education, U.P. Lucknow vide impugned order dated 19th
September,2014, has rejected the claim of the petitioner on the ground that appointment on Class-IV posts
shall be made by the outsourcing in terms of the Government Order dated 06th January, 2011.
Upon a consideration of the rival submissions as also the material placed for consideration before the learned
Single Judge, we find that Lala Babu Baijal had struck down the Government Order dated 6 January 2011
which had stipulated that all future appointments on Class IV post in institutions governed by the 1921 Act
would be only by way of outsourcing.

We are, therefore, of the opinion that the ends of justice would merit a remand of the matter to the appellant
No.3 before whom the rival contentions noticed above are placed and the respective parties permitted to
assert the same and for the third appellant to take a considered decision thereon. This is necessitated not just
on account of the submissions urged on behalf of the appellants but also in order to enable the third appellant
to consider the submission of the original petitioner in respect of non-applicability of the Government Order
dated 29 October 2013 as also the issue of a non-existence of a prohibition under the 2016 Regulations.
8 All. State Of U.P. & Ors. Vs Shere Azam & Anr.
1025
We accordingly dispose of the Special Appeal and modify the judgment rendered by the learned Single Judge
with the following substituted directions:-
The original petitioner shall within a period of two weeks from today, submit his representation with respect to
the grant of approval to his appointment as peon in the Madarsa in question. The appellant No.3 shall
thereafter and after putting the Madarsa as also other concerned parties to notice proceed to consider and
dispose of the said representation by way of a reasoned and speaking order within a period of eight weeks
therefrom. All rights and contentions of the parties are left open for adjudication by the appellant No.3.

Held: Para-

Case Law discussed:
Ali Ahmad Vs. State of U.P.1,
Committee of Management, Lala Babu Baijal Memorial Inter College and another Vs State of
U.P. and Others2.
State of U.P Vs. The U.P. Pradhanacharya Parishad, Lucknow and another4.

## Text

1024 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 1024
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.08.2016

BEFORE

THE HON'BLE DILIP B BHOSALE, C.J.
THE HON'BLE YASHWANT VARMA, J.

Special Appeal Defective No.- 507 Of 2016

State Of U.P. & Ors. ...Appellants
 Versus
Shere Azam & Anr. ...Respondents

Counsel for the Appellants:
Vivek Shandilya

Counsel for the Respondents:
J.P. Singh

A writ petition was preferred by the opposite party No.1 (the original petitioner) seeking a direction
commanding the third appellant to pass appropriate orders for release of his salary without being fettered in
any manner by clause 5 of a Government Order dated 29 October 2013. Clause 5 of the said Government
order mandated that vacancies in the Class IV cadre of the employees of Madarsas could be filled only by way
of outsourcing. The original petitioner claims that he had been appointed by the second respondent as a peon
on 27 March 2013. It was contended in the writ petition that since the petitioner has come to be appointed by
the second respondent prior to the promulgation of the Government Order dated 29 October 2013, the
approval to his appointment could not be withheld.

"Petitioner claims to be selected as Peon in Madarsa Darul Uloom (Niswan) Mau, district Mau (for short, the
"Institution"). The Committee of Management of the Institution sent the papers relating to selection to the
District Minority Welfare Officer to consider the papers for approval of the selected person. The
Inspector/Registrar, Board of Madarsa Education, U.P. Lucknow vide impugned order dated 19th
September,2014, has rejected the claim of the petitioner on the ground that appointment on Class-IV posts
shall be made by the outsourcing in terms of the Government Order dated 06th January, 2011.
Upon a consideration of the rival submissions as also the material placed for consideration before the learned
Single Judge, we find that Lala Babu Baijal had struck down the Government Order dated 6 January 2011
which had stipulated that all future appointments on Class IV post in institutions governed by the 1921 Act
would be only by way of outsourcing.

We are, therefore, of the opinion that the ends of justice would merit a remand of the matter to the appellant
No.3 before whom the rival contentions noticed above are placed and the respective parties permitted to
assert the same and for the third appellant to take a considered decision thereon. This is necessitated not just
on account of the submissions urged on behalf of the appellants but also in order to enable the third appellant
to consider the submission of the original petitioner in respect of non-applicability of the Government Order
dated 29 October 2013 as also the issue of a non-existence of a prohibition under the 2016 Regulations.
8 All. State Of U.P. & Ors. Vs Shere Azam & Anr.
1025
We accordingly dispose of the Special Appeal and modify the judgment rendered by the learned Single Judge
with the following substituted directions:-
The original petitioner shall within a period of two weeks from today, submit his representation with respect to
the grant of approval to his appointment as peon in the Madarsa in question. The appellant No.3 shall
thereafter and after putting the Madarsa as also other concerned parties to notice proceed to consider and
dispose of the said representation by way of a reasoned and speaking order within a period of eight weeks
therefrom. All rights and contentions of the parties are left open for adjudication by the appellant No.3.

Held: Para-

Case Law discussed:
Ali Ahmad Vs. State of U.P.1,
Committee of Management, Lala Babu Baijal Memorial Inter College and another Vs State of
U.P. and Others2.
State of U.P Vs. The U.P. Pradhanacharya Parishad, Lucknow and another4.

(Delivered by Hon'ble Dilip B Bhosale, Chief Justice
&
Hon'ble Yashwant Varma, J.)

1. Heard Sri Vivek Shandilya, learned Additional Chief Standing Counsel for the appellants
and Sri J.P. Singh for the respondent No.3.

2. The State and the Department of Minority Welfare is in appeal questioning the
correctness of a judgment rendered by the learned Single Judge dated 22 April 2015.

3. A writ petition was preferred by the opposite party No.1 (the original petitioner) seeking
a direction commanding the third appellant to pass appropriate orders for release of his salary
without being fettered in any manner by clause 5 of a Government Order dated 29 October 2013.
Clause 5 of the said Government order mandated that vacancies in the Class IV cadre of the
employees of Madarsas could be filled only by way of outsourcing. The original petitioner claims
that he had been appointed by the second respondent as a peon on 27 March 2013. It was contended
in the writ petition that since the petitioner has come to be appointed by the second respondent prior
to the promulgation of the Government Order dated 29 October 2013, the approval to his
appointment could not be withheld.

4. From a reading of the judgment of the learned Single Judge, it further appears that
reliance was placed upon an order passed on Ali Ahmad Vs. State of U.P.1 which had been
disposed of in the following terms:-

"Petitioner claims to be selected as Peon in Madarsa Darul Uloom (Niswan) Mau,
district Mau (for short, the "Institution"). The Committee of Management of the Institution sent the
papers relating to selection to the District Minority Welfare Officer to consider the papers for
approval of the selected person. The Inspector/Registrar, Board of Madarsa Education, U.P.
Lucknow vide impugned order dated 19th September,2014, has rejected the claim of the petitioner
1026 INDIAN LAW REPORTS ALLAHABAD SERIES

on the ground that appointment on Class-IV posts shall be made by the outsourcing in terms of the
Government Order dated 06th January, 2011.

Learned Counsel for the petitioner submits that paragraph-2 of the Government
Order dated 06th January, 2011 has already been set aside by this Court in the case of Committee of
Management, Lala Babu Baijal Memorial Inter College and another Vs. State of U.P. and others,
2012 (4) ADJ 586. No other ground has been mentioned in the impugned order.

Learned Standing Counsel does not dispute the said legal proposition.

In view of the aforesaid facts and circumstances of the case, keeping this writ
petition pending would not serve the purpose of either of the parties, therefore, with the consent of
learned Counsel appearing for the parties, this writ petition is finally disposed of and the impugned
order dated 19th September,2014, passed by the Inspector/Registrar, Board of Madarsa Education,
Lucknow, which is liable to be set aside, is set aside.

The Inspector/Registrar is directed to consider the matter afresh on the basis of the
papers submitted by the Committee of Management for approval in accordance with law.

No order as to costs."

5. The learned Single Judge has proceeded to dispose of the writ petition with a direction
that the claim of the petitioner be considered in light of the order passed in Ali Ahmad. Ali Ahmad
itself, it becomes relevant to note, had come to be disposed of noticing the judgment rendered by a
learned Single Judge in Committee of Management, Lala Babu Baijal Memorial Inter College
and another Vs. State of U.P. and others2. The learned Single Judge in Lala Babu Baijal had
struck down the provisions of a Government Order dated 6 January 2011, which mandated that the
appointment on Class IV posts in Intermediate Colleges would be made only by way of
outsourcing.

6. Shri Shandilya, learned counsel appearing for the appellants has submitted that neither
the Government Order dated 6 January 2011 nor the judgment rendered by the Court in Lala Babu
Baijal was applicable inasmuch as both had been rendered with reference to the provisions of the
U.P. Intermediate Education Act 19213. It was his submission that Madarsas including the one in
which the petitioner is stated to have been appointed were governed by the provisions of the Uttar
Pradesh Ashashkiya Arabi Tatha Farsi Madarson Ki Manyata Niyamawali, 1987. It was further
submitted that the Government Order dated 29 October 2013 had neither been challenged nor was
the said Government Order struck down by the Court in Lala Babu Baijal. The learned counsel for
the appellant therefore submits that the order passed in Ali Ahmad, which itself came to be
rendered upon concession, was clearly not applicable. He further submitted that even otherwise the
judgment in Lala Babu Baijal no longer holds the field consequent to the amendments effected to
Regulation 101 framed under the provisions of the 1921 Act. It was his contention that the above
change in the statutory regimen and its consequential impact on Lala Babu Baijal was duly noticed
8 All. State Of U.P. & Ors. Vs Shere Azam & Anr.
1027
by a Division Bench of the Court in State of U.P Vs. The U.P. Pradhanacharya Parishad,
Lucknow and another4.

7. On the other hand, learned counsel for the original petitioner, apart from reiterating the
submissions advanced on the writ petition, has further contended that the Uttar Pradesh NonGovernmental Arabic And Persian Madarsa Recognition, Administration and Services Regulation,
20165 which have been recently promulgated on 22 July 2016, themselves do not impose any
restriction on Class IV posts being filled only by way of outsourcing.

8. Upon a consideration of the rival submissions as also the material placed for
consideration before the learned Single Judge, we find that Lala Babu Baijal had struck down the
Government Order dated 6 January 2011 which had stipulated that all future appointments on Class
IV post in institutions governed by the 1921 Act would be only by way of outsourcing.

9. The Court in Lala Babu Baijal had found that the appointments to class IV posts were
governed by the regulations framed under the 1921 Act and in the absence of any such restriction
having been imposed under the regulations, the right to make an appointment to a Class IV post
could not have been fettered by issuance of a mere Government Order. However after the judgment
had been rendered in Lala Babu Baijal, Regulation 101 was amended imposing certain restrictions
under the 1921 Act. The Governor granted prior approval for the amendment of Regulation 101 on
4 September 2013. The amended regulation was published in the official gazette on 24 April 2014.

10. It becomes relevant to note that on 18 December 2013, a learned Single Judge had
stayed the communication of the Governor dated 4 September 2014. However, the amended
regulation as notified on 24 April 2014 was not stayed. It is this position which was noticed by the
Division Bench in Pradhanacharya Parishad. The Division Bench has held as follows:-

"It is not possible to subscribe to this submission for the simple reason that
amended Regulation 101 was notified on 24 April 2014, which was subsequent to the interim order
of the learned Single Judge dated 18 December 2013. At the stage when the interim order was
issued on 18 December 2013, all that had happened, was that a communication was issued on 4
September 2013 indicating the prior approval of the Governor. Regulation 101 as amended was
notified much later. As a matter of fact, several writ petitions have been filed, as stated by the
learned Standing Counsel, to challenge the vires of Regulation 101, which are pending adjudication
at Allahabad. The State has filed its counter affidavit in those writ petitions so as to facilitate a final
hearing and disposal.

The respondents filed a writ petition before the learned Single Judge on 29 August
2014, which was after amended Regulation 101 had come into force. Unless they were to challenge
amended Regulation 101 and were in a position to obtain an interim order or, as the case may be, a
final order, it would not be possible for them to obtain relief merely on the basis of the judgment in
the earlier writ petition filed by Committee of Management Lala Babu Baijal Memorial Inter
College. That judgment was rendered in the context of the second paragraph of the Government
1028 INDIAN LAW REPORTS ALLAHABAD SERIES

Order dated 6 January 2011 and much before Regulation 101 was amended by the issuance of a
gazette notification on 24 April 2014.

Hence and for these reasons, the mandamus which has been issued by the learned
Single Judge by the impugned judgment and order dated 16 September 2014 is unsustainable. The
learned Single Judge has not had regard to the provisions of amended Regulation 101 or to the
admitted position that there was no challenge thereto in the writ petition."

11. The other important aspect of which mention must necessarily be made is that
admittedly the services of the original petitioner as also the administration of the Madarasa in
question is governed by the U.P. Board of Madarsa Education Act 2004 and the Uttar Pradesh
Ashashkiya Arabi and Parsi Madarson Ki Manyata Niyamawali, 1987 and not the 1921 Act. In fact,
the learned counsel for the original petitioner has also placed before us the 2016 Regulations which
have been promulgated and published in the official gazette on 22 July 2016.

12. We are, therefore, of the opinion that the ends of justice would merit a remand of the
matter to the appellant No.3 before whom the rival contentions noticed above are placed and the
respective parties permitted to assert the same and for the third appellant to take a considered
decision thereon. This is necessitated not just on account of the submissions urged on behalf of the
appellants but also in order to enable the third appellant to consider the submission of the original
petitioner in respect of non-applicability of the Government Order dated 29 October 2013 as also
the issue of a non-existence of a prohibition under the 2016 Regulations.

13. We accordingly dispose of the Special Appeal and modify the judgment rendered by the
learned Single Judge with the following substituted directions:-

14. The original petitioner shall within a period of two weeks from today, submit his
representation with respect to the grant of approval to his appointment as peon in the Madarsa in
question. The appellant No.3 shall thereafter and after putting the Madarsa as also other concerned
parties to notice proceed to consider and dispose of the said representation by way of a reasoned
and speaking order within a period of eight weeks therefrom. All rights and contentions of the
parties are left open for adjudication by the appellant No.3.
--------
8 All. M/S Hotline Electronics Limited Vs State Of U.P. & Ors.
1029
(2016) 8 ILRA 1029
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.08.2016

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE PRABHAT CHANDRA TRIPATHI, J.

Writ Tax No.- 1160 Of 2009

M/S Hotline Electronics Limited ...Petitioner
Versus
State Of U.P. Ors. ...Respondents

Counsel for the Petitioner:
Arun Kumar Gupta, N.C. Gupta

Counsel for the Respondents:
C.S.C.

This writ petition has been filed challenging the validity of "State Development Tax" (SDT) levied at the rate of
1% and seeking a writ of mandamus declaring the levy of SDT on Eligibility Certificate holders as ultra vires.
The petitioner has also prayed for quashing of the assessment order dated 05.03.2009 whereby 1% SDT has
been imposed on the sale of Television chassis, coloured televisions, television parts and accessories.

The Court held that the State Legislature is fully competent under Entry 54, List II to levy tax on sale or
purchase of goods. SDT is a tax on the taxable turnover of dealers and its incidence is squarely on the event
of sale or purchase of goods. The definition of 'tax' under Section 2(n) is inclusive and after amendment
specifically includes SDT. Section 3-H is a valid charging provision. The levy of SDT is in addition to trade tax
and is adjustable against the monetary limit of the Eligibility Certificate. The argument that SDT is not a tax on
sale or purchase has no merit.

Held: Para-The State Development Tax (SDT) introduced by the U.P. Trade Tax (Amendment) Act, 2005 is
intra vires the Constitution and the U.P. Trade Tax Act, 1948. The writ petition lacks merit and is dismissed.
No costs.

Case Law discussed:
State of U.P. and others vs. Systematic Conscom Limited,
M/s. Ganga Saran & Sons (Pvt.) Ltd., Calcutta vs. Income Tax Officer & others.

(Delivered by Hon'ble Sudhir Agarwal, J.
&
Hon'ble Prabhat Chandra Tripathi, J.)

1. Heard Sri N.C. Gupta, learned counsel for petitioner and learned Standing Counsel for
respondents, and perused record.