# The Union of India & Ors v. Indrajeet & Ors

- **Citation:** (2020) 2 ILRA 1738
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-10
- **Case number:** Writ A No. 61227 of 2009
- **Bench:** Sudhir Agarwal, Rajeev Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-union-of-india-ors-v-indrajeet-ors-45229
- **Pages:** 9

## Headnote

A. Article 14 & 16 - Indian Constitution -
positive concept - respondent's claim of
parity with other selected candidates
whose services were regularized by doing
away with the typing skill qualification
requirement is against the Circulars
dated 07.04.1994 and 20.08.1997

The law as available or operating on the date
of accrual of vacancies had to be applied.
Admittedly, Board's Circular dated 07.04.1994.
which provided for promotion from Group D to
Group C Cadre was in force. Thus Railway
Board's Circular dated 07.04.1994 was already
operating which provided that typing skill is
necessary qualification and same has to be
acquired by promoted candidate. Therefore,
applicant-respondents 1 & 2 could not have
claimed exemption from aforesaid requirement
i.e., typing skill in absence of any provision
contemplating such exemption. (para 24)

B. Doctrine of sub silentio - doctrine of
per incurium - does not lay a binding law
- are exceptions to the rule of precedent
Writ Petition Allowed.
List of cases cited

## Text

1738 INDIAN LAW REPORTS ALLAHABAD SERIES
knowledge that the recruitment was being
made under the General Rules, the
respondents had waived their right to
question
the
advertisement
or
the
methodology adopted by the Board for
making selection and the learned Single
Judge and the Division Bench of the High
Court
committed
grave
error
by
entertaining the grievance made by the
respondents."

21. In view of the above, I am of the
considered opinion that the petitioner after
participation and defeating in the selection
proceeding cannot take U turn by
challenging the selection proceeding.

22. Accordingly, no ground has been
made out for interference in the impugned
order in exercise of power under Article
226 of the Constitution of India.

23. The writ petition lacks merit and
is hereby dismissed.
----------
(2020)02ILR A1738

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.12.2019

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

Writ A No. 61227 of 2009

The Union of India & Ors. ...Petitioners
Versus
Indrajeet & Ors. ...Respondents

Counsel for the Petitioners:
Sri A.K. Gaur, Sri Rajnish Kumar Rai

Counsel for the Respondents:
S.C., Sri Ram Gopal Tripathi
A. Article 14 & 16 - Indian Constitution -
positive concept - respondent's claim of
parity with other selected candidates
whose services were regularized by doing
away with the typing skill qualification
requirement is against the Circulars
dated 07.04.1994 and 20.08.1997

The law as available or operating on the date
of accrual of vacancies had to be applied.
Admittedly, Board's Circular dated 07.04.1994.
which provided for promotion from Group D to
Group C Cadre was in force. Thus Railway
Board's Circular dated 07.04.1994 was already
operating which provided that typing skill is
necessary qualification and same has to be
acquired by promoted candidate. Therefore,
applicant-respondents 1 & 2 could not have
claimed exemption from aforesaid requirement
i.e., typing skill in absence of any provision
contemplating such exemption. (para 24)

B. Doctrine of sub silentio - doctrine of
per incurium - does not lay a binding law
- are exceptions to the rule of precedent
Writ Petition Allowed.
List of cases cited

1. Jai Prakash and ors V. Central Administrative
Tribunal, Allahabad Bench and ors Writ Petition
No. 65560 of 2005

2. Lancaster Motor Co. (London) Ld. V. Bremith
Ltd., (1941) KB 675

3. Gerard V. Worth of Paris Ltd. (K) (1936) 2 All
ER 905

4. 5Municipal Corporation of Delhi Vs. Gurnam
Kaur, AIR 1989 SC 38

5. State of U.P. and Anr. Vs. Synthetics and
Chemicals Ltd. and Anr., 1991(4) SCC 139

6. Arnit Das v. State of Bihar, AIR 2000 SC 2264

7. M/s. AOne Granites Vs. State of U.P. and
others, AIR 2001 SC 1203

8. Bhavnagar University Vs. Palitana Sugar Mill
Pvt. Ltd., AIR 2003 SC 511
2 All. The Union of India & Ors. Vs. Indrajeet & Ors.
1739
9. Divisional Controller, K.S.R.T.C. Vs.
Mahadeva Shetty, AIR 2003 SC 4172

10. Cement Corporation of India Ltd. Vs
Purya & Ors., 2004 (8) SCC 270

11. Deb Narayan Shyam & Ors Vs. State
of West Bengal & Ors, JT 2004(10) SC
320

12. State of Punjab and Anr. Vs. Devans
Modern
Brewaries
Ltd.
and
Anr.
2004(11) SCC 26

13. Bharat Forge Co. Ltd. Vs. Uttam
Manohar Nakate, AIR 2005 SC 947

14. Zee Tele Films Ltd., M/s. Vs. Union
of India, AIR 2005 SC 2677

15. State of U.P. & Ors Vs. Jeet S. Bisht
& Anr, 2007(6) SCC 586

16. Farhat Hussain Azad V. State of U.P.
and ors 2005 ALJ 647

17. N. Bhargavan Pillai V. State of
Kerala AIR 2004 SC 2317

18. Faujdar Vs. Deputy Director of
Education and ors. 2006 (3) AWC 2243

19. J.K. Construction Engineers and
ors. Vs. UOI and ors Civil Misc. Writ
Petition No. 47754 of 2005

20. Brahma Prakash V. State of U.P. and
ors 2006 (2) ESC 1017

21. State of Bihar and others Vs.
Kameshwar Prasad Singh and another,
AIR 2000 SC 2306

22. Union of India and another Vs.
International Trading Co. and another,
AIR 2003 SC 3983

23. Lalit Mohan Pandey Vs. Pooran
Singh and others, AIR 2004 SC 2303

24. M/s Anand Buttons Ltd. etc. Vs.
State of Haryana and others, AIR 2005
SC 565
25. Kastha Niwarak G. S. S. Maryadit,
Indore Vs. President, Indore Development
Authority, AIR 2006 SC 1142

26. Shiv Raj Singh Yadav Vs. State of U.P.
and ors Special Appeal No. 375 of 2005
(Delivered by Hon'ble Sudhir Agarwal, J.
& Hon'ble Rajeev Misra, J.)

1. Heard Mr. Rajnish Kumar Rai,
learned counsel for petitioners and Mr.
Ram Gopal Tripathi, learned counsel
representing respondents -1 and 2.

2. This writ petition under Article
226 of Constitution of India has been filed
against
judgment
and
order
dated
29.05.2009
passed
by
Central
Administrative Tribunal, Allahabad Bench,
Allahabad (hereinafter referred to as
"Tribunal") in Original Application No.
734 of 2006 (Indrajeet and another Vs.
The General Manager, North Eastern
Railway and others) (hereinafter referred
to as OA) whereby aforesaid OA filed by
respondents-1 and 2 has been allowed with
the following directions:

" 7. Accordingly, we find that
orders dated 08.06.2006/ Annexure-12,
18.06.1998/
Annexure-4,
14.09.2000/
Annexure-5 AND 22.05.2000/ Annexure-6
cannot be sustained and are, accordingly,
set aside, with direction to the respondents
to consider the Applicants and all other
persons, (who are similarly situated as the
applicants), to be considered and treated
similarly as jai Prakash, Nagendra Nath,
Jai Singh and Ramphal Prasad and others
as per order dated 03.06.2006 (Annexure11-Compilation-II) and should not be
compelled to rush to Tribunal/Court."

3. Case set up by applicantsrespondents-1 and 2 is that they were
1740 INDIAN LAW REPORTS ALLAHABAD SERIES
initially appointed on the post of Khalasi
which is a Group 'D' Cadre Post and
working
in
North
Eastern
Railway,
Gorakhpur. They were promoted on the
post of Junior Clerks which fall in the
cadre of Group-C, against vacancies,
which occurred up to 31st March, 1997.
Selection
process
commenced
vide
notification dated 20.08.1997. Applicantsrespondents-1
and
2
were
selected
pursuant
to
aforesaid
notification.
Ultimately selections so made were
notified on 29.05.1998. However, as
applicants-respondents-1 and 2 did not
possess
typing
qualification,
their
promotions were made provisional.

4. Applicants-respondents-1 and 2
claimed to be be exempted from typing
test as per judgement of this Court in Writ
Petition No. 65560 of 2005, Jai Prakash
and others Vs. Central Administrative
Tribunal, Allahabad Bench and others,
decided on 17.10.2005. According to
applicants-respondents-1 and 2, since
similarly situated Group-D, employees
namely Jai Prakash, Ramphal Prasad, Jai
Singh and Nagendra Nath, who were also
promoted as Junior Clerks from Group D,
were exempted from typing test, they
(applicants-respondents 1 and 2) were also
entitled to the same benefit. Petitioners did
not
agree
to
aforesaid
request
of
applicants-
respondents-1
and
2.
Therefore, applicant-respondents 1 and 2
filed O.S. No. 734 of 2006 (Indrajeet and
another Vs. The General Manager, North
Eastern Railway and others), which has
been allowed vide judgement and order
dated 29.05.2009. Thus feeling aggrieved
by judgement and order dated 29.08.2009
passed by Tribunal, petitioners have now
approached this Court by means of present
writ petition.

5. Learned counsel for petitioners
contended that prior to promotion of
applicants-respondents-1 and 2, on the
post of Junior Clerk, which is a Group-C
post, there was already, in existence, a
Railway Circular dated 07.04.1994 .
Aforesaid Circular provides that typing
skill is compulsory for the post of Junior
Clerk in the Cadre of Group-C. Such
candidates, who get selected for promotion
to the post of Junior Clerk in Cadre of
Group-C but do not possess typing skill,
be granted provisional promotion and shall
have to acquire typing skill within two
years of promotion. Relevant extract of
Circular dated 07.04.1994 reads as under:

" In case of promotion from
group 'D' to group 'C' in the ministerial
cadre and promotion of clerks as Senior
Clerks against LDCE quota, the employees
will henceforth be required to acquire the
typing skill within a period of two years
and their promotion will be provisional
subject to acquiring the prescribed typing
qualification
within
the
stipulated
period."

(Emphasis added)

6. The aforesaid Board's Circular was
substituted by another Circular dated 20th
August, 1997 wherein it was provided that
in respect of all the vacancies of clerks,
which fell vacant upto 31st March, 1997,
selection for promotion from Group D to
Group C employees shall be made after
holding written test and Hindi or English
typing test. It also provided that in case a
candidate
does
not
possess
typing
qualification, he will have to acquire the
same within two years. The relevant
extract
of
Board's
Circular
dated
20.08.1997 reads as under:-
2 All. The Union of India & Ors. Vs. Indrajeet & Ors.
1741

Þ [k.M ßxß & vH;kFkhZ dks Vad.k
xfr fgUnh esa 25 'kCn ;k vaxzsth esa 30 'kCn izfr
feuV gksuk pkfg,A bl ekeys dks jsy ifj"kn ds
i= la0 bZ 1⁄4,u0th01⁄2 1&96@lh0,Q0ih0@19
fnukad 03-02-1997 ds vuqlkj p;fur vH;fFkZ;ksa
dks nks o"kZ ds vUnj Vad.k dh vgZrk iwjh dj
foHkkxh; VsLV esa mRrh.kZ gksuk iMsxkA tks
vlQy ik;s tk;sxsa mUgsas iqu% muds iwoZ in ij
inkouhr dj inLFkkfir dj fn;k tkosxkA

Vad.k dh vgZrk le; lhek ds vUnj
iwjh u djus ij mudh inLFkkiuk @inksUufr Ik
ij vUkfUre izkfotuy ekuh tk;sxhAß

(Emphasis Added)

7. Applicants-respondents-1 and 2
appeared in the selection held in 1998 and
were granted promotion on provisional
basis.

8. The question whether applicantsrespondents 1 and 2 were entitled for
exemption from typing test has been
answered by Tribunal in favour of
applicant-respondents-1 and 2 by relying
on the judgement dated 17.10.2005 of this
Court in CMWP NO. 65560 of 2005 (Jai
Prakash
and
others
Vs.
Central
Administrative
Tribunal,
Allahabad
Bench and others) wherein candidates
promoted on the post of Junior Clerks
(Group-C post) from Group -D posts were
exempted from typing test. Accordingly,
Tribunal held that applicants-respondents1 and 2 are also entitled for the same
protection as extended to other candidates
by Railways granting exemption from
typing test vide order dated 08.06.2006.

9. Learned counsel for petitioners
submitted that High Court's judgement
dated 02.09.2005 was passed in ignorance
of Board's Circulars dated 07.04.1994 and
20.08.1997 as same were not placed before
this Court. According to learned counsel
for petitioners aforesaid Circulars, cover
the field and very much in existence but
unfortunately could not be considered.
Therefore, aforesaid judgement in Jai
Prakash and others (Supra) rendered by
this Court is per incuriam. Even otherwise,
if the view taken by this Court vide
judgement dated 17th October, 2005, is
applied,
it
covers
vacancies
which
occurred upto 31.03.1997, and promotions
made against such vacancies. In that
eventuality,
Board's
Circular
dated
20.08.1997 is liable to be ignored since it
is a subsequent Law. While earlier
vacancies shall be governed by old Rules
new vacancies shall be governed by new
Rules. Since on the date of accrual of
vacancies, notification dated 20.08.1997
was not in existence, therefore same was
not required to be complied with in respect
of
promotions
made
against
earlier
vacancies upto 30.03.1997.

10. Admittedly, Board's Circular
dated 07.07.1994 was in force at the time
of accrual of vacancies on 31.03.1997.
Therefore, these vacancies were required
to filled up in accordance with Board's
Circular dated 07.07.1994. Since aforesaid
circular clearly provided holding of typing
test and in case, any candidate does not
possess the same, he would be required to
obtain typing skill within two years, it has
to be followed and cannot be ignored.

11. Notification dated 20.08.1997
only reiterates the conditions prescribed in
Board's Circular dated 07.07.1994. Thus
typing skill was mandatory. Tribunal
having ignored this aspect has erred in law
in allowing O.A. filed by applicantrespondents1 and 2.

12. Mr. Ram Gopal Tripathi, learned
counsel
representing
applicantrespondents-1 and 2 contends that since
1742 INDIAN LAW REPORTS ALLAHABAD SERIES
benefit has been granted to others,
therefore, applicants-respondents-1 and 2
are also entitled to the same benefit but,
we do not agree with the submission made
by
learned
counsel
for
applicantsrespondents-1 and 2.

13. Record reveals that even at the
time
of
earlier
judgement
dated
02.05.2005 passed by this Court in Writ
Petition No. 65560 of 2005, Board's
Circular
Dated
07.07.1994
was
in
existence and operating, but same was not
considered by this Court. It appears that
the same was not brought to the notice of
this Court. Thus the above judgement
suffers from the vice of per 'ignorantia' &
per 'incuriam' or 'sub silentio' and cannot
be held to be a binding law.

14. A decision passes sub silentio, in
the technical sense that has come to be
attached to that phrase, when the particular
point of law involved in the decision is not
perceived by the Court or present to its
mind. This doctrine was referred to in
Lancaster Motor Co. (London) Ltd. v.
Bremith, Ltd., (1941) 1 KB 675. Earlier
in Gerard v. Worth of Paris Ltd. (K),
(1936) 2 All ER 905 the question of
priority of claimant's debt was argued and
only on this argument the order was
passed by the Court. There was no
consideration to the question whether a
garnishee order could properly be made on
an account standing in the name of the
liquidator. In a subsequent case when this
point was raised the Court held that the
earlier decision would not be binding since
the question that which it was confronted
was not considered therein. Sir Wilfrid
Greene, M. R., said that he could not help
thinking that the point now raised had
been deliberately passed sub silentio by
counsel in order that the point of substance
might be decided. He further observed that
point had to be decided by the earlier
Court before it could make the order
which it did; nevertheless, since it was
decided
"without
argument,
without
reference to the crucial words of the rule,
and without any citation of authority", it
was not binding and would not be
followed. The Court said:

"Precedents sub silentio and
without argument are of no moment."

15.

This
principle
has
been
recognised and followed since then in
several authorities and in India also.

16. In Salmond's Jurisprudence,
12th Edn., Professor P. J. Fitzgerald
explains the concept of sub silentio in the
following manner:

"A decision passes sub silentio,
in the technical sense that has come to be
attached to that phrase, when the
particular point of law involved in the
decision is not perceived by the Court or
present to its mind. The Court may
consciously decide in favour of one party
because of point A, which it considers and
pronounces upon. It may be shown,
however, that logically the Court should
not have decided in favour of the
particular party unless it also decided
point B in his favour; but point B was not
argued or considered by the Court. In such
circumstances, although point B was
logically involved in the facts and
although the case had a specific outcome,
the decision is not an authority on point B.
Point B is said to pass sub silentio."

17. This passage has been quoted as
such with approval by Apex Court in
Municipal Corporation of Delhi Vs.
2 All. The Union of India & Ors. Vs. Indrajeet & Ors.
1743
Gurnam Kaur, AIR 1989 SC 38. Same
principles has been followed in State of
U.P. and Anr. Vs. Synthetics and
Chemicals Ltd. and Anr., 1991(4) SCC
139; Arnit Das v. State of Bihar, AIR
2000 SC 2264; M/s. A-One Granites Vs.
State of U.P. and others, AIR 2001 SC
1203;
Bhavnagar
University
Vs.
Palitana Sugar Mill Pvt. Ltd., AIR 2003
SC
511;
Divisional
Controller,
K.S.R.T.C. Vs. Mahadeva Shetty, AIR
2003 SC 4172; Cement Corporation of
India Ltd. Vs Purya & Ors., 2004 (8)
SCC 270; Deb Narayan Shyam & Ors
Vs. State of West Bengal & Ors, JT
2004(10) SC 320; State of Punjab and
Anr. Vs. Devans Modern Brewaries Ltd.
and Anr., 2004(11) SCC 26; Bharat
Forge Co. Ltd. Vs. Uttam Manohar
Nakate, AIR 2005 SC 947; Zee Tele
Films Ltd., M/s. Vs. Union of India, AIR
2005 SC 2677; and, State of U.P. & Ors
Vs. Jeet S. Bisht & Anr, 2007(6) SCC
586.

18. This doctrine of sub silentio is an
exception to the rule of precedent.

19. Then comes the doctrine of per
incurium. What constitute "per incurium"
need not detain our attention since time
and again it has been explained by Apex
Court. Recently a Full Bench of this Court
in Farhat Hussain Azad Vs. State of U.P.
and others, 2005 ALJ 647 after referring
to the law with respect to "per incurium"
laid down by Supreme Court in catena of
decisions, has observed as under:-

"The concept of "per in curium"
has been considered by the Apex Court
time and again explaining that the
expression means through inadvertence or
a point of law is not consciously
determined. If an issue is neither raised,
nor argued, a decision by the Court after
pondering over the issue in depth would
not be precedent binding on the Courts.
Per incurium are decisions given in
ignorance
or
forgetfulness
of
some
statutory provisions or where the Court
omits to consider a binding precedent of
the same Court or the superior Court
rendered on the same issue or where Court
presumes something contrary to the facts
of the case. (Vide Mamleshwar Prasad &
Anr. Vs. Kanahaiya Lal (Dead), (1975) 2
SCC 232; Rajpur Ruda Meha & Ors. Vs.
State of Gujrat, AIR 1980 SC 1707; A.R.
Antule Vs. R.S. Nayak, AIR 1988 SC 1531;
Municipal Corporation of Delhi Vs.
Gurnam Kaur, AIR 1989 SC 38; Punjab
Land
Development
and
Reclamation
Corporation
Ltd.,
Chandigarh
Vs.
Presiding
Officer,
Labour
Court,
Chandigarh & Ors., (1990) 3 SCC 682;
State of West Bengal Vs. Synthetics and
Chemicals Ltd., (1991) 1 SCC 139;
Maharashtra State Cooperative Cotton
Growers Marketing Federation Ltd & Anr.
Vs. Employees' Union & Anr., 1994 Supp
(3) SCC 385; Pawan Alloys & Casting Pvt
Ltd, Meerut Vs. U.P. State Electricity
Board & Ors., (1997) 7 SCC 251; Ram
Gopal Baheti Vs. Girdharilal Soni & Ors.,
(1999) 3 SCC 112; Sarnam Singh Vs. Dy.
Director of Consolidation & Ors., (1999)
5 SCC 638; Govt. of Andhra Pradesh Vs.
B. Satyanarayana Rao, AIR 2000 SC
1729; Arnit Das Vs. State of Bihar (2000)
5 SCC 488; M/s. Fuerst Day Lawson Ltd.
Vs. Jindal Exports Ltd., AIR 2001 SC
2293; A-One Granites Vs. State of U.P. &
Ors., (2001) 3 SCC 537; Suganthi Suresh
Kumar Vs. Jagdeeshan, AIR 2002 SC 681;
Director of Settlements A.P. & Ors. Vs.
M.R. Apparao & Anr., (2002) 4 SCC 638;
S. Shanmugavel Nadar Vs. State of T.N &
Anr.., (2002) 8 SCC 361; State of Bihar
Vs. Kalika Kuer Kalika Singh & Ors., AIR
1744 INDIAN LAW REPORTS ALLAHABAD SERIES
2003 SC 2443; and Manda Jaganath Vs.
K.S. Rathnam & Ors., (2004) 7 SCC 492).

In B. Shyama Rao Vs. Union
Territory of Pondichery & Ors., AIR 1967 SC
1480, the Constitution Bench of the Supreme
Court observed as under:-

"It is trite to say that a decision is
binding not because of its conclusions but in
regard to its ratio and the principles, laid down
therein."

In State of U.P. & Anr. Vs.
Synthetics & Chemicals Ltd. & Anr. (1991) 4
SCC 139, the Apex Court followed the
aforesaid judgment in B. Shyama Rao and
held as under:-

"Any declaration or conclusion
arrived without application of mind or
proceeded without any reason cannot be
deemed to be declaration of law or authority of
a general nature binding as a precedent......A
conclusion without reference to relevant
provision of law is weaker than even casual
observation."

Similar view has been reiterated in
Divisional Controller, KSRTC Vs. Mahadeva
Shetty & Anr., (2003) 7 SCC 197, observing
that casual expressions in a judgment carry no
weight at all, nor every passing remark,
however eminent, can be treated as an excathedra statement having the weight of
authority."

20. In N. Bhargavan Pillai Vs. State of
Kerala, AIR 2004 SC 2317 (para 14) Court
said that if a view has been expressed without
analysing the statutory provision, it cannot be
treated as a binding precedent and at the most
is to be considered as having been rendered
per incuriam. The same law has been
reiterated in Faujdar Vs. Deputy Director of
Education and others, 2006 (3) AWC 2243.

21. In Civil Misc. Writ Petition No.
47754 of 2005 (M/s J.K. Construction
Engineers and others Vs. Union of India
and others) decided on 28.02.2006, a
Division Bench of this Court held:-

"The doctrine of per incuriam is
applicable where by inadvertence a binding
precedent or relevant provisions of the Statute
have not been noticed by the Court."...(Para
106)

22. Similar view has been taken by
another Division Bench in Brahma Prakash
Vs. State of U.P. & other- 2006 (2) ESC
1017. In para 40 of the judgment this Court
held as under-

"Thus
in
view
of
aforesaid
discussion, it is clear that while rendering the
decision in Radha Krishna Gupta's case
earlier Division Bench of this Court with all
respect did neither ascertain the ratio of
decisions referred in the judgment, nor
discussed, as to how the factual situation fits
in with the fact and situation of the decision
on which reliance was placed. Contrary to it
the decision of Hon'ble Apex Court which
requires consideration of various factors in
this regard, referred herein before in our
judgment has been completely ignored by the
Division Bench, therefore, being a decision
given per incuriam, cannot be held to be
binding authority under law."

23. In the judgements referred to
above, the aforesaid doctrine of per
incuriam has been discussed in detail and
it has been held that a judgment per
incuriam does not lay down a binding
precedent.

19. Even otherwise, directive of
the Tribunal reads as under:

" In view of the above, as the
notification-dated 20.08.1997 does not
operate retrospectively, the issue requires
to be examined as on what date the
2 All. The Union of India & Ors. Vs. Indrajeet & Ors.
1745
vacancy occurred and then to proceed in
accordance with law. In case, the vacancy
had occurred prior to the date of issuance
of the said notification, the respondents
cannot insist for passing the typing test but
if the vacancy occurred subsequent to the
same, the judgement and order of the
Tribunal
does
not
require
any
interference."

(Emphasis Added)

24. Above quoted observation clearly
reveals that the law as available or
operating on the date of accrual of
vacancies had to be applied. Admittedly,
Board's Circulars dated 07.04.1994, which
provided for promotion from Group D to
Group C Cadre was in force. Thus
Railway
Board's
Circular
dated
07.04.1994 was already operating which
provided that typing skill is a necessary
qualification and same has to be acquired
by
promoted
candidate.
Therefore,
applicants-respondents-1 and 2 could not
have claimed exemption from aforesaid
requirement i.e. typing skill in absence of
any
provision
contemplating
such
exemption..

25. Tribunal has thus erred in law in
exempting respondents 1 and 2 from
typing test.

26. We also find that in a subsequent
matter, a Division Bench in Jai Prakash
and others Vs. Union of India and
others, decided on 17.07.2018 had an
occasion to examine this aspect and it has
observed as under:

"No doubt, in the earlier round
of litigation, the circular dated 7.4.1994
was not brought to the notice of either the
Tribunal or the writ court and therefore
the writ court, under the belief that on the
date of vacancy, which was claimed to
have arisen in the year 1997, there may
not have been requirement to pass typing
test had directed to consider eligibility for
promotion as prevailing on the date of
vacancy, but that, by itself, would not be a
ground to ignore the existence of the
circular dated 7.4.1994 when the same
was produced in the second round of
litigation. Moreover, the order of the High
Court was complied by the railway
administration by observing that the writ
court's
order
was
without
taking
cognizance of railway circular dated
7.4.1994 but in due respect to the writ
court's order exemption from typing test
was provided as a one time exemption. "

(Emphasis added)

27. Learned counsel appearing on
behalf of applicants-respondents-1 and 2,
then contended that since benefit of
exemption has been granted to other
selected candidates therefore, applicantsrespondents-1 and 2 are also entitled to
same benefit. It is further submitted that
some other persons, who did not possess
typing
skill,
have
been
regularized.
Submission
so
made
is
wholly
misconceived. We have already discussed
the effect of Railway Board's Circular
dated 07.04.1994 and also Circular dated
20.08.1997. Applicants-respondents-1 and
2 cannot claim any right dehors the
aforesaid
circulars.
Applicantsrespondents-1
and
2
are
claiming
perpetuity in illegality. It is well settled
that two wrongs will not make one right.
(See State of Bihar and others Vs.
Kameshwar Prasad Singh and another,
AIR 2000 SC 2306; Union of India and
another Vs. International Trading Co.
and another, AIR 2003 SC 3983; Lalit
Mohan Pandey Vs. Pooran Singh and
others, AIR 2004 SC 2303; M/s Anand
1746 INDIAN LAW REPORTS ALLAHABAD SERIES
Buttons Ltd. etc. Vs. State of Haryana and
others, AIR 2005 SC 565; and Kastha
Niwarak G. S. S. Maryadit, Indore Vs.
President, Indore Development Authority,
AIR 2006 SC 1142).

28. A Division Bench of this Court (in
which one of us Hon'ble Sudhir Agarwal,J.
was a member) in Special Appeal No.375 of
2005 Shiv Raj Singh Yadav Vs. State Of
U.P. And Others, decided on 27.05.2011,
has considered this aspect in detail and in
paragraph no.22, has held:

"22. Once it is established that the
petitioner had no legal right of regularisation,
merely
because
some
irregularities
and
illegalities
have
been
observed
by
the
respondents in some other cases with respect to
regularisation, that would not confer any right
upon the petitioner to claim parity. The right of
equality under Article 14 and 16 of the
Constitution is a positive concept and not a
negative one. (See Post Master General, Kolkata
and others Vs. Tutu Das, 2007(5) SCC 317;
Punjab National Bank by Chairman and Anr. Vs.
Astamija Dash, AIR 2008 SC 3182; Punjab State
Electricity Board and others Vs. Gurmail Singh,
2008(7) SCC 245; M/s. Laxmi Rattan Cotton
Mills Ltd. Vs. State of U.P. and others, 2009(1)
SCC 565; Panchi Devi Vs. State of Rajasthan
and others, 2009(2) SCC 589; State of Bihar Vs.
Upendra Narayan Singh, 2009(5) SCC 65; State
of Uttaranchal Vs. Alok Sharma and others, JT
2009(6) SC 463; State of Punjab and another Vs.
Surjit Singh and others, 2009(11) SCALE 149;
State of Madhya Pradesh and others Vs. Ramesh
Chandra Bajpai, 2009(11) SCALE 619; Shanti
Sports Club and another Vs. Union of India and
others, 2009(11) SCALE 731; Ghulam Rasool
Lone Vs. State of J & K and others, JT 2009(13)
SC 422."(Emphasis Added).

29. In the light of aforesaid, we find that
impugned judgementand and order dated
29.05.2009 passed by Tribunal cannot be
sustained. Writ petition is accordingly allowed.
Judgment and order dated 29.05.2009 passed
by Tribunal in O.A. No. 734 of 2006 (Indrajeet
and another Vs. The General Manager, North
Eastern Railway and others) is hereby set
aside.

30. No costs.
----------
(2020)02ILR A1746

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.01.2020

BEFORE

THE HON'BLE YASHWANT VARMA, J.

Writ A No. 63167 of 2012

Ashok Kumar Srivastava ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Udayan Nandan, Sri Shashi Nandan

Counsel for the Respondents:
C.S.C.

A. Service Law - Promotion - Uttar
Pradesh
Subordinate
Excise
Service
Rules, 1992: Rules 5, 16, 27 - In the order
impugned, the State Government on the
recommendations
of
Excise
Commissioner
extended the benefit of Rule 5 to Senior Clerks,
who had not completed the stipulated 10 years
of service. As a result of which, the claim of
petitioner for promotion which was duly
considered and recommended could not be
given effect to. The Court while quashing the
impugned orders held as follows.

B. The power of relaxation as conferred
by S. 27 is liable to be construed bearing
in mind the language employed therein.
It is evidently liable to be invoked where
the particular rule or provision causes