# Sughar Singh v. State of U.P. and another

- **Citation:** (2009) 3 ILRA 1185
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-12-15
- **Case number:** Civil Misc. Writ Petition No.67796 of 2009
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sughar-singh-v-state-of-u-p-and-another-41428
- **Pages:** 5

## Headnote

U.P. Intermediate Education Act, 1921Chapter
III,
Regulation
4
&
22appointment of R-6-challenged after 8
years-ground of challenge being relative
of manager-admittedly R-6 is senior to
petitioner-only
for
purposes
of
deprivation from promotion-can not be
1186 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
allowed on highly belated stage-petition
dismissed.

Held: Para 5 & 7

Once the appointment is made and
continue
for
a
sufficient
time,
the
appointee
is
entitled
for
all
consequences flowing by virtue of such
appointment as are permissible under
the Rules and Regulations, governing
conditions of service which includes
promotion etc.

I find no substance in the submission
inasmuch as in the absence of any
challenge
to
such
appointment
the
respondent no. 6, for such a long time
and even in this case, he would be
entitled to all such consequences flowing
from his status as a result of his
appointment in a Class-IV post and the
same cannot be denied to him for a
limited purpose only.
Case law discussed:
1986 UPLBEC 44, 2004(5) ESC (All) 234,
2008(2)ESC 911, J.T.2007(4) SC 253, J.T.
1994(6) SC 71, 1995(5) SCC 628, AIR 1961 SC
993, AIR 1976 SC 2617, 1976(3) SCC 579, AIR
2007 SC 1330= 2007(1) Supreme 455,
2008(4) ESC 2423, 2009(1) SCC 297,. 2009(2)
SCC 479, 2009(3) SCC 281, (1874) 5 PC 239.

## Text

3 All] Sughar Singh V. State of U.P. and another
1185
Civil Procedure to indicate that the power
was specifically taken away by the
legislature. Therefore, the view taken by
the Bombay High Court in Maharashtra
Power Development Corpn. cannot be
said to be the correct proposition of law."

20. In view of the foregoing
discussion, it is clear that even if under
Section 483, there was no condition
prohibiting an appeal against an order of
the learned Single Judge passed in
appellate exercise of jurisdiction, the said
exclusion has been now specifically
provided in by the Legislature under
Section 100-A C.P.C. The judgment of
the Apex Court in Kamal Kumar Dutta
(supra) applies with full force in the facts
of the present case.

21. In the present case, the order
impugned was passed by the learned
Single
Judge
in
Civil
Misc.
Appeal/Objection
85/2007.
An
application for correction was moved in
the order which has also been rejected.
The learned Single Judge decided the
appeal/objection against the report of the
Official Liquidator exercising power
under Rule 164 of the Company Rules.

Rule 164 of the Company Rules is
quoted below:

"164. Appeal by creditor.-If a
creditor is dissatisfied with the decision of
the Liquidator in respect of his proof, the
creditor may, not later than 21 days from
the date of service of the notice upon him
of the decision of he Liquidator, appeal to
the Court against the decision. The appeal
shall be made by a Judge's summons,
supported by an affidavit which shall set
out the grounds of such appeal, and notice
of the appeal shall be given to the
Liquidator. On such appeal, the Court
shall have all the powers of an appellate
Court under the Code."

22. The application moved for
correction in the order passed in the
appellate exercise of jurisdiction by the
learned Single Judge clearly bars further
appeal
under
Section
483
of
the
Companies Act, as well as Letters Patent
as laid down by the Apex Court in the
case of Kamal Kumar Dutta (supra).

23. In view of the foregoing
discussion, the preliminary objection
raised by Shri Ashok Mehta is upheld and
this
appeal
is
dismissed
as
not
maintainable.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.12.2009

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No.67796 of 2009

Sughar Singh

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

Counsel for the Petitioner:
Sri Rakesh Bahadur
Sri Praful Bahadur

Counsel for the Respondents:
Sri A.K. Saxena
Sri Gautam Baghel

U.P. Intermediate Education Act, 1921Chapter
III,
Regulation
4
&
22appointment of R-6-challenged after 8
years-ground of challenge being relative
of manager-admittedly R-6 is senior to
petitioner-only
for
purposes
of
deprivation from promotion-can not be
1186 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
allowed on highly belated stage-petition
dismissed.

Held: Para 5 & 7

Once the appointment is made and
continue
for
a
sufficient
time,
the
appointee
is
entitled
for
all
consequences flowing by virtue of such
appointment as are permissible under
the Rules and Regulations, governing
conditions of service which includes
promotion etc.

I find no substance in the submission
inasmuch as in the absence of any
challenge
to
such
appointment
the
respondent no. 6, for such a long time
and even in this case, he would be
entitled to all such consequences flowing
from his status as a result of his
appointment in a Class-IV post and the
same cannot be denied to him for a
limited purpose only.
Case law discussed:
1986 UPLBEC 44, 2004(5) ESC (All) 234,
2008(2)ESC 911, J.T.2007(4) SC 253, J.T.
1994(6) SC 71, 1995(5) SCC 628, AIR 1961 SC
993, AIR 1976 SC 2617, 1976(3) SCC 579, AIR
2007 SC 1330= 2007(1) Supreme 455,
2008(4) ESC 2423, 2009(1) SCC 297,. 2009(2)
SCC 479, 2009(3) SCC 281, (1874) 5 PC 239.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Rakesh Bahadur,
learned counsel for the petitioner, learned
Standing Counsel for respondents no. 1 to
3 and Sri Gautam Baghel, Advocate for
respondent no. 6.

2. This writ petition is directed
against the order dated 11/12.11.2009
passed by the District Inspector of
Schools, Etawah (Annexure-1 to the writ
petition) whereby, in accordance with
Chapter III, Regulation 2(2) of the
Regulations
framed
under
U.P.
Intermediate
Education
Act,
1921
(hereinafter referred to as the "1921 Act")
the promotion of respondent no. 6 on
class-IV post has been approved.

3. Learned counsel for the petitioner
submitted that the respondent no. 6 was
appointed as a Class-IV employee on
20.01.2000 when one Sri Shiv Shanker
Verma was the president of the committee
of management. The respondent no. 6 was
his cousin (Mamera Bhai) and thus his
appointment was invalid from the very
inception in view of Regulation 22 read
with Regulation 4, Chapter-III of the
Regulations framed under 1921 Act
which prohibits the appointment of a
relative of any member of the committee
of management in the College.

4. It is not in dispute that since the
date of appointment, on Class-IV post
respondent no. 6 is continuously working
in the College and at no point of time his
appointment
was
ever
disputed
by
petitioner in any proceedings. It is only
for the first time when a representation
was filed on 30.10.2009 while the
appointment of respondent no. 6 on ClassIV post made on 20.01.2000 was
challenged by the petitioner on the above
ground only for the purpose of depriving
him promotion under the Regulations.

5. In fact the order of appointment
of respondent no. 6 has not been
challenged even in this writ petition and
there is no relief seeking writ of certiorari
for quashing the appointment letter of
respondent no. 6. When certain persons
are
eligible
to
be
considered
for
promotion, in order to deny a promotion
or right to be considered for promotion,
their appointment made long back cannot
be disputed particularly when no steps
were taken by the person concerned
assailing the appointment before the
3 All] Sughar Singh V. State of U.P. and another
1187
competent authority in accordance with
law within a reasonable time. Once the
appointment is made and continue for a
sufficient time, the appointee is entitled
for all consequences flowing by virtue of
such appointment as are permissible
under
the
Rules
and
Regulations,
governing conditions of service which
includes promotion etc.
6. Sri Rakesh Bahadur, learned
counsel for the petitioner stated that even
today he is not aggrieved by the mere
appointment of respondent no. 6 on ClassIV post but his grievance is that the
respondent no. 6 cannot be considered for
promotion to a Class-III post since his
appointment in Class-IV was not valid.

7. I find no substance in the
submission inasmuch as in the absence of
any challenge to such appointment the
respondent no. 6, for such a long time and
even in this case, he would be entitled to
all such consequences flowing from his
status as a result of his appointment in a
Class-IV post and the same cannot be
denied to him for a limited purpose only.

8. In Vijay Narain Sharma Vs.
District Inspector of Schools, Etawah
and others, 1986 UPLBEC 44, this
Court in paragraphs 25 and 26 of the
judgment held as under:

"25. On a reading of Regulation 3 of
Chapter II, it is clear that it nowhere
contemplated that the teacher
who
challenges the seniority list can again
challenge the validity of the appointment
or promotion of a teacher in the college.
He can only be aggrieved by the factors,
if wrongly decided, as mentioned in
Regulation 3. The dispute can be taken in
appeal under Clause (1) of Regulation 3
quoted above. In my opinion, it is clear
that while disputing the validity of the
seniority list, it is not open to a teacher to
challenge the appointment and promotion
which had already been done. The
challenge
to
the
appointment
and
promotion has been specifically provided.
If no challenge is made at that stage then
the appointment and promotion becomes
final. If the Legislature intended that the
appointment and promotion can be
challenged at the time of determining
seniority, the Legislature would have
specifically provided in the Regulations.
This has not been done.
26. There is another aspect of the
matter that once the appointment or
promotion becomes final, a vested right is
created in favour of a teacher. A
colleague of his in the institution having
acquiesced to the appointment and
promotion
cannot
be,
subsequently,
permitted to raise the dispute."

9. Similar View was taken in Smt.
Manju Keshi Dixit Vs. State of U.P. and
others, 2004(5) ESC (All) 234 and in
paragraph 13 this Court held:

"13. Thus, the consistent view of this
Court is that the appointment cannot be
challenged
while
determining
the
seniority and if the appointment has been
made and is continued for long period, it
should not be disturbed or set aside on
some
technicalities
or
procedural
irregularities."

10. Both the above judgements have
been followed recently in Smt. Bharti
Roy Vs. Deputy Director of Education,
II, Kanpur and others, 2008(2)ESC 911.

11. Moreover, no reason has been
assigned by learned counsel for the
petitioner as to why for the last almost 9
1188 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
years the appointment of respondent no. 6
on Class-IV post was not challenged in a
proper forum.

12. Delay and laches constitute
substantial reason for disentitling relief in
equitable jurisdiction under Article 226 of
the Constitution of India. In New Delhi
Municipal Council Vs. Pan Singh and
others J.T. 2007(4) SC 253, the Apex
Court observed that after a long time the
writ petition should not have been
entertained even if the petitioners are
similarly
situated
and
discretionary
jurisdiction may not be exercised in
favour of those who approached the Court
after a long time. It was held that delay
and laches were relevant factors for
exercise of equitable jurisdiction. In M/S
Lipton India Ltd. And others vs. Union
of India and others, J.T. 1994(6) SC 71
and M.R. Gupta Vs. Union of India and
others 1995(5) SCC 628 it was held that
though there was no period of limitation
provided for filing a petition under Article
226 of Constitution of India, ordinarily a
writ petition should be filed within
reasonable time. In K.V. Rajalakshmiah
Setty Vs. State of Mysore, AIR 1961 SC
993, it was said that representation would
not be adequate explanation to take care
of delay. Same view was reiterated in
State of Orissa Vs. Pyari Mohan
Samantaray and others AIR 1976 SC
2617 and State of Orissa and others Vs.
Arun Kumar Patnaik and others
1976(3) SCC 579 and the said view has
also been followed recently in Shiv Dass
Vs. Union of India and others AIR 2007
SC 1330= 2007(1) Supreme 455 and
New Delhi Municipal Council (supra).
The aforesaid authorities of the Apex
Court has also been followed by this
Court in Chunvad Pandey Vs. State of
U.P. and others, 2008(4) ESC 2423. This
has
been
followed
in
Virender
Chaudhary
Vs.
Bharat
Petroleum
Corporation & Ors., 2009(1) SCC 297.
In S.S. Balu and another Vs. State of
Kerala and others, 2009(2) SCC 479 the
Apex Court held that it is well settled
principle of law that delay defeats equity.
It is now a trite law that where the writ
petitioners approaches the High Court
after a long delay, reliefs prayed for may
be denied to them on account of delay and
laches irrespective of the fact that they are
similarly situated to other candidates who
have got the benefit. In Yunus Vs. State
of Maharashtra and others, 2009(3)
SCC 281 the Court referred to the
observations of Sir Barnes Peacock in
Lindsay
Petroleum
Company
Vs.
Prosper Armstrong Hurde etc. (1874) 5
PC 239 and held as under:

"Now the doctrine of laches in
Courts of Equity is not an arbitrary or
technical doctrine. Where it would be
practically unjust to give a remedy either
because the party has, by his conduct
done that which might fairly be regarded
as equivalent to a waiver of it, or where
by his conduct and neglect he has though
perhaps not waiving that remedy, yet put
the other party in a situation in which it
would not be reasonable to place him if
the remedy were afterwards to be
asserted, in either of these cases, lapse of
time and delay are most material. . . . . . .
Two circumstances always important in
such cases are, the length of the delay and
the nature of the acts done during the
interval which might affect either party
and cause a balance of justice or injustice
in taking the one course or the other, so
far as relates to the remedy."

13. Once it is not in dispute that the
respondent no. 6 is senior to the petitioner
3 All] Smt. Nirmal Devi V. State of U.P. and others
1189
as a Class-IV employee and he is
otherwise eligible for promotion, I do not
find it a fit case warranting interference at
this stage in extraordinary equitable
jurisdiction under Article 226 of the
Constitution. The writ petition lacks
merit, and, is accordingly dismissed in
limine.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.12.2009

BEFORE
THE HON'BLE PRAKASH KRISHNA, J.
THE HON'BLE S.C. NIGAM, J.

Civil Misc. Writ Petition No.155 of 2005

Smt. Nirmal Devi

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

Counsel for the Petitioner:
Sri Govind Krishna

Counsel for the Respondent:
Sri C.B. Yadav, C.S.C.

U.P. Entertainment and Betting Tax Act
1979-Section
3-Entertainment
Tax
exemption from Tax liability for 5 years
by
G.O.
dated
11.8.2000-petitioner
inspite
of
total
exemption
realized
Rs.19,95,890/- from cinema goers-it
would be travesty of justice if cinema
owner allowed to appropriate the huge
amount from cinema goers-direction
issued to pay the amount collected
unauthorisedly with cost of Rs.5000/-.

Held: Para 15

In the above case the Apex Court has
held that in such a situation where the
cinema goers had lost huge amount, it
would be travesty of justice if the
owners of the cinema theaters become
eligible to appropriate the amount for its
own benefits. To the aforementioned
extent,
the
doctrine
of
unjust
enrichment may be held to be applicable.
A person who unjustly enriches himself
cannot be permitted to retain the same
for its benefit except enrichment. Such
licencee/picture hall owners cannot and
could not collect any entertainment tax
from the cinema goers and if collected,
they are liable to deposit the same with
the State treasury, otherwise it would
amount unjust enrichment.
Case law discussed:
2009 NTN (Vol. 41) 33

Additional Note- with all respect to the
view taken by Court if amount of
entertained tax unauthorisdly realized by
the cinema owner from cinema viewers,
how
it
can
be
deposited
towards
entertainment Tax lead except in head of
Pradhan Mantri Rahat Kosh.

(Delivered by Hon'ble Prakash Krishna, J.)

1. By means of the present petition,
the petitioner has challenged the order of
the District Magistrate, Azamgarh dated
10-1-2005
whereby
the
District
Magistrate has asked the petitioner to
deposit a sum of Rs.19,95,890/- as the
same was unauthorisedly realised by her
from the cinema goers.

2. The State Government, in order to
provide entertainment and boost up
cinema in the villages and remote areas
promulgated schemes from time to time
known as 'grant-in-aid facility' to new
cinema halls. By the Government orders
dated 9-11-2004, 7-12-1998 and 11-82000, the State Government provided
grant-in-aid facility to newly constructed
permanent cinema buildings subject to the
fulfillment of terms and conditions
mentioned therein. The petitioner herein,
applied for and was granted exemption
from deposit of entertainment tax under
the scheme dated 11-8-2000. In pursuance