# Tiwari v. State of U.P. and

- **Citation:** (2010) 1 ILRA 242
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-03-18
- **Case number:** Special Appeal No. 988 of 2003
- **Bench:** Vijay Manohar Sahai, Ritu Raj Awasthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tiwari-v-state-of-u-p-and-41565
- **Pages:** 5

## Headnote

Intermediate Education Act-Regulation 2
(2)-Class III post in recognized Inter
College fall vacant-50% reservation to
class 4th employees from promotion
quota-whether available even on Single
vacancy-held-'yes' otherwise it would
amount to deny the promotion quota
against statutory provision.

Held: Para 7

There is another aspect of the matter
that in case of one post of clerk is to be
filled up by direct recruitment and not by
promotion then it would amount to
denying any avenue of promotion to the
Class-IV employees as the post in
question would be filled up by direct
recruitment and the Class-IV employees
would be denied of opportunity of
promotion on Class-III post of clerk,
which
would
lead
to
stagnation,
1 All] Suresh Tiwari V. State of U.P. and others

243
adversely
affecting
the
Class-IV
employees.
Case law discussed:
1999(3) UPLBEC 2315, (2006) 3 UPLBEC 2391.

## Text

242 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

with the dispute with regard to liability of
owner
or
insurer,
which
can
be
considered in the separate application in
the selfsame cause or in an execution
application in connection thereto to be
initiated by the insurance company."
(Emphasis supplied)

42. In view of the above discussion,
we are of the opinion that the Tribunal did
not commit any illegality in directing the
Appellant-Insurance Company to make
deposit of the amount of compensation,
and recover the same from the insured
person i.e. the owner of the vehicle in
question-respondent no. 5 herein.

43. After making deposit of the
amount awarded under the impugned
award, it will be open to the AppellantInsurance Company to initiate appropriate
proceedings for recovery of the amount
from the owner of the aforesaid Truck in
question (respondent no. 5 herein), and
seek appropriate directions in such
proceedings.

44. It is made clear that in case any
appeal is filed by the claimant-respondent
nos. 1 to 4 or by the owner of the
aforesaid Truck in question (respondent
no.5 herein), it will be open to the
Appellant-Insurance Company to contest
the same on the grounds legally open to
the Appellant-Insurance Company.

45. The amount of Rs.25,000/-
deposited by the Appellant-Insurance
Company while filing the present appeal,
will be remitted to the Tribunal for being
adjusted towards the amount to be
deposited by the Appellant-Insurance
Company, as per the directions given in
the impugned award.

46.

Subject
to
the
above
observations, the appeal filed by the
Appellant-Insurance
Company
is
dismissed. However, on the facts and in
the circumstances of the case, there will
be no order as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.03.2010

BEFORE
THE HON'BLE VIJAY MANOHAR SAHAI, J.
THE HON'BLE RITU RAJ AWASTHI, J.

Special Appeal No. 988 of 2003

Suresh Tiwari

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

Counsel for the Petitioner:
Sri Amit Saxena
Sri Abhinav Shukla

Counsel for the Respondents:
C.S.C.

Intermediate Education Act-Regulation 2
(2)-Class III post in recognized Inter
College fall vacant-50% reservation to
class 4th employees from promotion
quota-whether available even on Single
vacancy-held-'yes' otherwise it would
amount to deny the promotion quota
against statutory provision.

Held: Para 7

There is another aspect of the matter
that in case of one post of clerk is to be
filled up by direct recruitment and not by
promotion then it would amount to
denying any avenue of promotion to the
Class-IV employees as the post in
question would be filled up by direct
recruitment and the Class-IV employees
would be denied of opportunity of
promotion on Class-III post of clerk,
which
would
lead
to
stagnation,
1 All] Suresh Tiwari V. State of U.P. and others

243
adversely
affecting
the
Class-IV
employees.
Case law discussed:
1999(3) UPLBEC 2315, (2006) 3 UPLBEC 2391.

(Delivered by Hon'ble Ritu Raj Awasthi, J.)

1. Heard Sri Abhinav Shukla
holding brief of Sri Amit Saxena for the
appellant and Standing Counsel appearing
for the respondents.

2. Under challenge is the judgment
and order dated 25.08.2003 passed in civil
misc. writ petition no. 35867 of 2003
(Suresh Tiwari vs. State of U.P. and
others). The learned Single Judge relying
on the decision of this Court in the case of
Palak
Dhari
Yadav
vs.
Regional
Inspectress of Girls Schools and others,
1999(3) UPLBEC 2315 has dismissed the
writ petition holding that the Single post
of clerk cannot be filled up by way of
promotion.

3. The factual matrix as borne out
from the record appears that the appellantpetitioner was working on a Class-IV post
at Siddheshwar Uchchtar Madhyamik
Vidyalaya, Gopalpur, Fatehpur. There
was one sanctioned post of clerk in the
said Vidyalaya which fell vacant on
31.10.2000.
The
committee
of
management
passed
a
resolution
permitting the appellant-petitioner to
work on the post of clerk under 50 percent
promotional quota. The proposal was
approved by the D.I.O.S. Fatehpur and
thereafter the appellant-petitioner had
joined on the post of clerk on 03.01.2002.

4. However, when the D.I.O.S. came
to know that a single post of clerk, which
ought to be filled up by way of direct
recruitment and not by way of promotion
in view of the decision in the case of
Palak Dhari Yadav (supra), he issued a
show cause on 07.05.2003 calling upon
the committee of management to show
cause as to why the approval granted be
not
cancelled.
The
committee
of
management
did
not
submit
any
explanation.
Thereupon
the
D.I.O.S.
taking into consideration the principle laid
down by this Court in the case of Palak
Dhari Yadav (supra) cancelled the earlier
approval.

5. The learned counsel for the
appellant has submitted that in the case of
Jai
Bhagwan
Singh
vs.
D.I.O.S.
Gautambudhnagar (writ petition no. 6836
of 2005) by order dated 28.10.2005 the
learned Single Judge had referred the
following question for consideration by a
larger Bench:

"Whether a single post of Class III
available in an Intermediate College
governed by the 1921 Act can be filled by
way of promotion and whether the case
of Palak Dhari Yadav, reported in (1999)
3 UPLBEC 2315, has been correctly
decided keeping in view the opinion
expressed by another Single Judge in
Writ Petition No. 4165 of 2004 as also
the pronouncement of the Apex Court in
the case of B. Badami vs. State of
Maysore and All India Federation vs.
Union of India."

6. The Division Bench while
considering the above reference has come
to the conclusion, as reported in (2006) 3
UPLBEC 2391, Jai Bhagwan Singh vs.
D.I.O.S., Gautambudh Nagar as under:

"13. Thus a bare reading of note of
Regulation 2(2) of the Regulations makes
it clear that if there is only one sanctioned
244 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

post, the same is to be filled up through
the channel of promotion since 50% of
one shall be half and half or more than
half is to be deemed as one, as per the
legal fiction contemplated in the Note.
14. The learned Single Judge in
Palak Dhari Yadav (supra) has placed
reliance upon the judgment of the Apex
Court in the case of Post Graduate
Institution of Medical Education and
Research, Chandigarh (supra). The Apex
Court in Post Graduate Institution of
Medical
Education
and
Research,
Chandigarh (supra) was considering the
question of applicability of reservation for
the Scheduled Castes, Scheduled Tribes
and Other Backward Classes categories
for filling the posts. The concept of
reservation
for
Scheduled
Castes,
Scheduled Tribes and Other Backward
Classes referable to Article 16(4) of the
Constitution is a different concept as
compared to the right of promotion,
which is a right given to existing
employees.
The
reservation,
as
contemplated under Article 16(4), is a
different concept with entire different
object. The judgment relied upon by the
learned Single Judge in Palak Dhari
Yadav (supra) was not a case dealings
with the promotion or right of serving
employees.
15. The Apex Court in State of
Punjab and others (supra) had occasion
to consider almost similar controversy.
The Punjab Medical College Education
Service (Class-I) Rules, 1978 provided for
method
of
appointment,
75%
by
promotion and 25% by direct recruitment.
The question arose in that context. The
submission raised before the Apex Court
that in view of the observations made in
R.K. Sabharwal v. State of Punjab,
reported at (1995) 2 SCC 745, the
determination as to whether the vacancy
will go to the promote or direct
recruitment
will
be
decided.
The
submission was made before the Apex
Court that the judgment of R. K.
Sabharwal's case (supra), which was
dealing with the reservation to the
Scheduled Castes, Scheduled Tribes, and
Other Backward Classes under Article
16(4),
has
nothing
to
do,
while
interpreting the Rules pertaining to the
quota fixed for only by promotion or
direct recruitment, this submission was
accepted by the Apex Court. In the
aforesaid judgment, the Apex Court had
also occasion to consider the Post
Graduate
Institution
of
Medical
Education and Research, Chandigarh
(supra) and held that the judgment of Post
Graduate
Institution
of
Medical
Education and Research, Chandigarh
(supra)
has
no
applicability,
while
considering the quota for promotion and
direct
recruitment.
Following
was
observed by the Apex Court in paragraph
12:
"Before parting with the discussion,
we may mention one submission placed
for our consideration by learned counsel
for the respondent. Placing reliance on a
latter Constitution Bench judgment in
Postgraduate
Institute
of
Medical
Education and Research v. Faculty Assn.,
it was contended that this Court in the
light of R. K. Sabharwal case held that
where there was only one post in a cadre,
there could not be any reservation under
Article 16(4) for for SCs. STs and BCs.
Similarly, if there is one post of Professor,
Rule 19 may not apply. In this connection,
paras 34 and 35 of the Report at p. 23
were pressed into service, Ray J.,
speaking for the Constitution Bench,
stated in the said paragraphs as under:
(SCC p.23, Paras 34-35):
1 All] Suresh Tiwari V. State of U.P. and others

245
"In a single post cadre, reservation
at any point of time on account of rotation
of roster is bound to bring about a
situation where such a single post in the
cadre will be kept reserved exclusively for
the members of the Backward Classes and
in total exclusion of the general members
of the public. Such total exclusion of
general members of the public and cent
per cent reservation for the Backward
Classes is not permissible within the
constitutional framework. The decisions
of this Court to this effect over the
decades have been consistent.
35. Hence until there is plurality of
posts in a cadre, the question of
reservation will not arise because any
attempt of reservation by whatever means
and even with the device of rotation of
roster in a single post cadre is bound to
create 100% reservation of such post
whenever such reservation is to be
implemented. The device of rotation of
roster in respect of single post cadre will
only mean that on some occasions there
will be complete reservation and the
appointment to such post is kept out of
bounds to the members of a large segment
of the community who do not belong to
any reserved class, but on some other
occasions the post will be available for
open competition when in fact on all such
occasions, a single post cadre should
have been filled only by open competition
amongst all segments of the society.
It is difficult to appreciate how this
decision can be of any assistance to
learned Counsel for the respondent. It is
obvious that in the aforesaid case, the
Constitution Bench was concerned with a
similar scheme of reservation for S.C.,
S.T. and BC candidates and, therefore,
Article
16
(4)
squarely
arose
for
consideration. To that extent, the said
decision falls in line with the legal
position
examined
by
the
earlier
Constitution Bench in R. K. Sabharwal
case. As we have already opined earlier,
the factual and legal situation in the
present case is entirely different. We are
not concerned with any scheme of
reservation under Article 16(4). Therefore
R.K. Sabharwal case cannot be pressed
into service, as seen earlier. If that is so,
on the same lines the ratio of the decision
of this Court in the Postgraduate Institute
of Medical Education & Research case
would also not apply. While deciding the
question of working out the Recruitment
Rule for appointment from two sources of
promotees and direct recruits wherein
only Article 16(1) would hold the field,
uninhibited by the exceptional category
carved out from the said sub-article (1) by
sub-article (4) thereof. The first point for
determination is, therefore, answered in
favour of the appellants and against the
respondent."
16. The above judgment of the Apex
Court clearly laid down that while
interpreting
the
Rules
regarding
promotion concept, the reservation has no
application.
17. Thus, we are of the view that in
the judgment of Palak Dhari Yadav's
case, reliance on the Post Graduate
Institution of Medical Education and
Research, Chandigarh (supra) was not a
correct reliance and the said reliance is
clearly misplaced. In Palak Dhari Yadav's
case, the learned Single Judge has
incorrectly taken the view that the rule
making
authority
while
enacting
Regulation 2(2) read with Note did not
visualise reservation of only one post for
promotion."

The reference was answered in the
following words:
246 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

"(i) A single post of Class-III
available in an Intermediate College
governed by the 1921 Act can be filled by
way of promotion; and the case of Palak
Dhari Yadav (supra) has not been
correctly decided."

That since the impugned judgment
and order has been passed relying on the
judgment of this Court in the case of
Palak Dhari Yadav (supra) which has
been subsequently declared as not laying
the correct law, therefore, we are of the
considered opinion that the impugned
judgment and order challenged in the
present special appeal is not sustainable in
the eye of law and liable to be set aside.

7. There is another aspect of the
matter that in case of one post of clerk is
to be filled up by direct recruitment and
not by promotion then it would amount to
denying any avenue of promotion to the
Class-IV employees as the post in
question would be filled up by direct
recruitment and the Class-IV employees
would be denied of opportunity of
promotion on Class-III post of clerk,
which would lead to stagnation, adversely
affecting the Class-IV employees.

8. In view of the above, the
impugned judgment and order dated
29.08.2003 is hereby set aside. The order
dated 23.05.2003 of the D.I.O.S. Fatehpur
cancelling the approval of promotion of
the appellant-petitioner on the post of
clerk is quashed. The consequences shall
follow. The appeal is hereby allowed. No
order as to costs.
---------
APPELLATE JURSDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.03.2010

BEFORE
THE HON'BLE VIJAY KUMAR VERMA, J.

Criminal Appeal No. 1905 of 1981

Briskshbhan @ Birkhey and others

...Appellants
Versus
State of U.P.

 ...Opposite Party

Counsel for the Appellants:
Sri G.S. Chaturvedi
Sri Apul Mishra
Sri Rahul Mishra

Counsel for the Opposite Party:
Sri Bhanu Pratap Singh
Sri Dharam Pal Singh
A.G.A.

Criminal
Appeal-Appeal
against
conviction order dated.25.08.81- offense
under section 147, 353,149, 307 IPCAppeal
admitted-record
summonedsession judge Jhansi in 2001 reported
that the Original record weeded out in
the year 1992 itself-except certified copy
judgement
nothing
there-even
reconstructed of record after 29 years
not possible-held-appeal can not be
decided on merit-except acquittal of
appellant following the ratio of judgment
of Apex Court in Abhay Raj Case.

Held: Para 7

From the report made by the Sessions
Judge, Jhansi, this fact is borne out that
the record of Session Trial No. 9 of 1980
was weeded out in the year 1992 and
original judgement only is available in
the
file.
From
the
report
dated
15.09.2007
of
the
Sessions
Judge,
Jhansi, this fact is also borne out that
reconstruction of the record is not
possible. I agree with the submission of
the learned counsel for the appellant