# Suresh Prasad Gautam v. State of U.P. and others

- **Citation:** (2008) 2 ILRA 431
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-01-16
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-prasad-gautam-v-state-of-u-p-and-others-41072
- **Pages:** 5

## Headnote

Constitution of India, Art. 226-Selection
for Special B.T.C. course-under 10%
quota those Shiksha Mitra completed 36
months-working
on
the
date
of
application-held can be considered-but
who were selected for the current
session but running on leave can not be
denied.

Held: Para 7

Having considered the submissions of
the counsel for the parties, this Court
holds that a candidate who wants to
apply in the Shiksha Mitra category for
the Special B.T.C. Training Course 2007
must have the requisite qualifications as
per
the
Government
Order
dated
10.7.2007, namely, a graduation degree
and
a
B.Ed.
degree.
Further,
the
candidate should have an experience
certificate of three academic sessions
and should also be working in the
432 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
academic session 2007-08, i.e., on date
of applying for the 2007 BTC Training
Course. If all these conditions are met,
the
candidate
would
be
considered
eligible for the B.T.C. Training Course of

## Text

2 All] Suresh Prasad Gautam V. State of U.P. and others
431
8. The conferment of discretion of
award of four times penalty in the hands
of executive authorities exercising quasijudicial powers should be provided with
sufficient guidelines by the legislature. In
the present case the act and rules do not
provide for any guidelines for imposing
penalty which may exceed to four times
of the amount of the proper duty or
deficient portion thereof. The State
Government should legislate to provide
sufficient guidelines in this regard, to
check the misuse of powers by the
authorities constituted under the Act.

9.

In
the
present
case
the
Commissioner has not insisted upon
deposit of third amount of deficiency and
penalty before he considered the stay
application.

10. The order as such cannot be
sustained. At the same time it may be
pointed out that the provisions of deposit
of one third amount, including the penalty
for which no reason have been given,
appear too highly onerous to be conceded.

11. The writ petition is allowed. The
order
dated
16.1.2008
passed
by
Commissioner, Meerut Division, Meerut
is set aside. The petitioner will deposit
one third of the amount of deficiency and
penalty
for
consideration
of
stay
application. The Commissioner will pass
fresh order on stay application only if
petitioner deposits one third amount of the
disputed amount.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.03.2008

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition 59584 of 2007
Connected with-
Civil Misc. Writ Petitions Nos. 59057 of
2007, 63423 of 2007, 12130 of 2008, 828
of 2008, 3992 of 2008, 372 of 2008, 370
of 2008, 521 of 2008, 3539 of 2008, 2739
of 2008, 5135 of 2008, 1630 of 2008

Suresh Prasad Gautam
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Shashi Nandan
Sri Udayan Nandan

Counsel for the Respondents:
Sri K.K. Chand
S.C.

Constitution of India, Art. 226-Selection
for Special B.T.C. course-under 10%
quota those Shiksha Mitra completed 36
months-working
on
the
date
of
application-held can be considered-but
who were selected for the current
session but running on leave can not be
denied.

Held: Para 7

Having considered the submissions of
the counsel for the parties, this Court
holds that a candidate who wants to
apply in the Shiksha Mitra category for
the Special B.T.C. Training Course 2007
must have the requisite qualifications as
per
the
Government
Order
dated
10.7.2007, namely, a graduation degree
and
a
B.Ed.
degree.
Further,
the
candidate should have an experience
certificate of three academic sessions
and should also be working in the
432 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
academic session 2007-08, i.e., on date
of applying for the 2007 BTC Training
Course. If all these conditions are met,
the
candidate
would
be
considered
eligible for the B.T.C. Training Course of
2007. Clause (1) of the order dated
1.10.2007
cannot
be
taken
into
consideration and is quashed.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. A Government Order dated
10.7.2007 was issued proposing to hold a
Special B.T.C. Training Course for such
candidates who were eligible for the post
of Assistant Teachers. It was proposed
that the candidates who are graduate and
have a B.Ed. degree could apply for the
Special B.T.C. Training Course. In
paragraph 18 of the Government Order
dated 10.7.2007, 10% seats were reserved
for those candidates who were working as
Shiksha Mitra and had an experience of
three years as a Shiksha Mitra and were
also functioning as a Shiksha Mitra at the
time when the applications were invited
for the Special B.T.C. Training course.

2.

Based
on
the
aforesaid
Government Order, an advertisement was
issued inviting applications for the
Special B.T.C. Training Course, 2007.
Paragraph
1
of
the
advertisement
contemplated that a candidate, who held
the requisite qualifications and who was
working as a Shiksha Mitra and had the
experience of three years, could also
apply.

3. Paragraph 4 of the said
advertisement contemplated that 10% of
the seats would be reserved for Shiksha
Mitra. Under sub clause (4) of condition
No.7, it was stated that an experience
certificate of three years had to be
submitted by the candidate. The Director,
Rajya
Shaikshik
Anusandhan
Evam
Prashikchan, U.P. issued a letter dated
26.7.2007 clarifying that three years
experience would mean three academic
sessions. It may be stated hear that an
academic session starts on 1st July of the
year and concludes on 31st May in the
subsequent year. Subsequently by an
order dated 1stOctober 2007 three years
of experience as a Shiksha Mitra was
clarified to mean three academic sessions
but, clause 1 of the aforesaid order further
clarified that whenever a candidate joins
the post of Shiksha Mitra, the date of such
joining would be treated as completion of
an academic session.

4. As a result of this clarification by
an order dated 1.10.2007, various Shiksha
Mitra who had completed two academic
sessions and their appointments was
renewed for the third academic session,
namely, 2007-08 applied for the Special
B.T.C. Training Course contending that
they had three years experience since they
have joined the third academic session
2007-08.

5. Based on this order, the
respondents issued a list of eligible
candidates, in which, it is alleged that the
names of those candidates were included
who had not completed three academic
sessions and were, therefore, not eligible.
The petitioners being one of the eligible
candidates whose name was not included
by the respondents is before this Court.
For facility, Writ Petition No.59584 of
2007, Suresh Prasad Gautam vs. State
of U.P. and others, is being treated as the
leading case. The petitioners submitted
that there are many candidates who may
not have joined the post of Shiksha Mitra
in July, namely, at the beginning of the
academic session and may have joined at
2 All] Suresh Prasad Gautam V. State of U.P. and others
433
the fag end of the academic session and
therefore, three years experience as a
Shiksha Mitra should not be confined to
three academic sessions but should be
treated
only
when
the
candidate
completes 36 actual months of training as
a Shiksha Mitra. The second submission
raised by the counsel for the petitioners is
that clause(1) of the order dated 1.10.2007
is patently erroneous and should be
quashed and that the person cannot be
treated to have completed an academic
session the moment he joins the post of
Shiksha Mitra at a particular point of
time.

6. The respondents have filed a
counter affidavit and submitted that the
order dated 1.10.2007 should be read as
completion of three academic sessions
and that an academic session would not
be completed upon the date of joining of
the candidate. This has been fairly
conceded by the learned standing counsel
Sri K.K. Chand. The learned standing
counsel however submitted that three
years experience should be treated as
three academic session is completely fair
and does not require any interference,
inasmuch as, normally by the time a
candidate joins one or two month elapses
from the date of the selection.

7.

Having
considered
the
submissions of the counsel for the parties,
this Court holds that a candidate who
wants to apply in the Shiksha Mitra
category for the Special B.T.C. Training
Course 2007 must have the requisite
qualifications as per the Government
Order
dated
10.7.2007,
namely,
a
graduation degree and a B.Ed. degree.
Further, the candidate should have an
experience certificate of three academic
sessions and should also be working in
the academic session 2007-08, i.e., on
date of applying for the 2007 BTC
Training Course. If all these conditions
are
met,
the
candidate
would
be
considered
eligible
for
the
B.T.C.
Training Course of 2007. Clause (1) of
the order dated 1.10.2007 cannot be taken
into consideration and is quashed.

8. In the light of the aforesaid, the
leading petition No.59584 of 2007 is
partly allowed with the direction to the
respondents to reconsider the list of
eligible candidates and, if it finds that a
candidate does not have three years
experience which means three academic
sessions, he would not be eligible to apply
for the training course. The mere fact that
a candidate is working as a Shiksha Mitra
for the third academic session 2007-08
would not give the candidate a right to
apply for the Special B.T.C. Training
course of 2007. Necessary correction in
the list would be made by the respondents
within six weeks from today. Similarly,
Writ Petition No.59057 of 2007 is also
partly allowed in terms of the leading
writ petition.

9. In Writ Petition No.63423 of
2007 the petitioner's candidature was
rejected on the ground that the petitioner
was not working as a Shiksha Mitra on
the date when she applied for the training
course since she had last worked upto
20.5.2005. In view of the fact, that one of
the
essential
requirements
for
consideration in this context is that the
candidate should be working as a Shiksha
Mitra as on the date of applying for the
B.T.C. Training course, her application
was rightly rejected under the 10%
category of Shiksha Mitra. The petitioner
is not entitled for any relief. The writ
petition is dismissed.
434 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
10. In Writ Petition Nos.12130 of
2008, 828 of 2008, 3992 of 2008, 372 of
2008, 370 of 2008, 521 of 2008, 3539 of
2008 and 2739 of 2008 the petitioners
had worked for two academic session and
renewal was granted for 2007-08 and in
view of the order dated 1.10.2007, the
said petitioners claimed completion of the
third academic session and contended that
they became eligible to apply for the
B.T.C. Training course. Since I have
already quashed clause (1) of the order
dated 1.10.2007, and in view of the fact
that the said petitioners had joined the
third academic session 2007-08 and had
not completed the third academic session,
the said petitioners do not have the
requisite experience as contemplated in
the Government Order dated 10.7.2007.
Consequently, their applications were
rightly rejected. The said petition does not
have any merit and are dismissed
accordingly.

11. In Writ Petition No.5135 of
2008 the petitioner worked as a Shiksha
Mitra from 25.3.2003 to 11.10.2006 and
again was given an appointment on
11.9.2007. The petitioner's application
was rejected on the ground that she was
not found on duty and therefore, her
application was rejected. The petitioner
contended that she was on leave and that
she had joined after availing her leave. In
my opinion, the candidature of the
petitioner was wrongly rejected. She has
the requisite experience of three years and
was working as a Shiksha Mitra on the
date when she applied for the B.T.C.
Training course. The fact that she was not
on duty does not mean that she was not
working
as
a
Shiksha
Mitra.
Consequently,
the
rejection
of
her
candidature by the respondent was
unjustified. The writ petition is allowed
and a mandamus is issued to the
respondents to reconsider her application
form and pass consequential orders within
four weeks from the date of the
production of a certified copy of this
order.

12. In Writ Petition No.1630 of
2008, the claim of the petitioner was
rejected on the ground that she did not
have three years experience as a Shiksha
Mitra. The petitioner contended before the
Court that her claim should have been
considered
in
the
General
Female
category 'Art' group and that her claim
had wrongly been considered in the
category of Shiksha Mitra. The learned
counsel submitted that a clerical error has
crept in the application form which was
submitted by her and instead of ticking
the column of General Female category,
by mistake she had been ticked in the
column relating to Shiksha Mitra. In my
view, the mistake was committed on the
part of the petitioner, for which she is
alone to be blamed. The respondents
while rejecting her claim had not
committed any error. Consequently, the
claim of the petitioner at this stage cannot
be considered afresh in a different
category. The writ petition fails and is
dismissed.

13. A certified copy of this order
shall be made available to the learned
counsel for the petitioners on payment of
usual charges within a week. A certified
copy of the order shall be made available
to Sri K.K. Chand, the learned standing
counsel for the last within the same
period.
---------
2 All] Ram Das V. State of U.P.
435
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.03.2008

BEFORE
THE HON'BLE S.S. KULSHRESTHA, J.
THE HON'BLE VIJAY KUMAR VERMA, J.

Criminal Appeal No. 550 of 2008

Ram Das ...Appellant (on Interim Bail)
Versus
State of U.P.

...Opposite Party

Counsel for the Appellant:
Sri Rajeev Sisodia
Sri Atul Sisodia

Counsel for the Opposite Party:
A.G.A.

Indian Penal Code-Section 498-A read
with 3⁄4 Dowry Prohibition Act-conviction
of 6 month R.I. with fine of Rs.1000/-
held-improper-in view of amendment- by
amending Act 43 of 86-under Section 3the quantum of fine must not be less
than 15000/- on the amount of Dowrywhichever
more-without
recording
special reason-sentence of fine can not
be less than 15000/- for guidancenecessary direction issued.

Held: Para 6

It is worthwhile to mention that the
learned Trial Court ignoring mandatory
provisions
of
Section
3
of
Dowry
Prohibition Act (in short, 'the Act') has
sentenced the appellant-accused Ram
Das
as
well
as
co-accused Chetan
(husband of the deceased) to undergo
rigorous imprisonment for six months
and to pay a fine of rupees one thousand
each under Section 3/4 of the Act,
whereas after amendment of the Act
vide Amending Act 43 of 1986, minimum
imprisonment under Section 3 of the Act
is not less than five years with fine,
which shall not be less than fifteen
thousand rupees or the amount of the
value of such dowry, whichever is more.
Although, in view of the Proviso to
Section 3 of the Act, the Court may, for
adequate and special reasons to be
recorded
in
the
judgement,
impose
sentence of imprisonment for a term of
less than five years, but no discretion
has been given to the Court to impose
fine less than fifteen thousand rupees.
The learned Trial Judge has not recorded
any adequate and special reason to
impose lesser sentence under section 3
of the Act, although both the accused
have been convicted under this Section
also. As such, the sentence imposed by
the learned Trial Judge under section 3
of the Act appears to be wholly illegal, as
sentence
of
fine
less
than
fifteen
thousand rupees cannot be imposed, if
the accused is convicted under Section 3
of the Act and if adequate and special
reasons are available in any case then
recording
such
reasons
in
the
judgement, although the Court may
impose sentence of imprisonment for a
term of less than five years, but in that
case also, sentence of fine less than
fifteen
thousand
rupees
cannot
be
imposed, as no discretion is left to the
Court by Legislature to .impose a fine
less than fifteen thousand rupees under
Section 3 of the Act. The Hon'ble
Supreme Court in the case of Kirpal
Singh Vs. State of Haryana 2000(40) ACC
136 has held that where minimum
sentence is prescribed in the statute,
then neither the Trial Court nor the High
Court can bypass the minimum limit
prescribed by law. Therefore, in instant
case also, sentence of fine less than
fifteen thousand rupees under Section 3
of the Act could not be imposed.
Case law discussed:
2000 (40) ACC-136

(Delivered by Hon'ble S.S. Kulshrestha, J.)

1. Heard Sri Rajeev Sisodia, learned
counsel for the appellant and learned
A.G.A. for the State and also perused the
material on record.