# Trust and another v. State of Bihar and

- **Citation:** High Court of Judicature at Allahabad #39573
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1998-11-12
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/trust-and-another-v-state-of-bihar-and-39573
- **Pages:** 4

## Text

1ALL] Babu Ram and another V. Dy. Cane Commissioner, Moradabad and others 65
22. In para 5 of the impugned order it is
stated that :
(a)The trust has taken the control and
management of Lokpriya Hospital through
registered perpetual lease deed.
(b)The staff in pre-clinical departments is
available. The staff in on clinical department
which was earlier on contract basis has also
been appointed on regular basis.
(c) The modification of wards for on
accommodating 5 to 6 patient in a room is
underway . After having noticed the above
facts two deficiencies mentioned in the order
dated 12.11.1998 of the respondents no.1
appear to have been made good. Therefore,
the insistence of respondents no 1 to subject
the petitioner trust for .the impugned order is
arbitrary exercise of power and cannot be
sustained . The order of the respondent no.1
dated 15.09.1999 , which has been passed
during pendency of the writ petition also
cannot be sustained , because it has been
made without giving the petitioner trust a
reasonable opportunity of being heard in
contravention of the first proviso to sub-
section (4) of section 10-A of The Indian
medical Council (Amendment) Act, 1993.

23. In the case of "Al-karim Educational
Trust and another Vs. State of Bihar and
others " reported in 1996(8) supreme Court
Cases page 330, the question was of
withholding or prolongation of grant of
affiliation to universities, and the Hon'ble
Supreme Court observed that it is impratical
to insist, for a foolproof or absolute adherence
to all requirements without regard to their
importance or relevance. In the final analysis
the question to be posed is whether there
exists
the
minimal
and
satisfactory
requirements to keep the matter going, and
not whether better arrangements that will
render the set-up more efficient and more
satisfactory , should be insisted as "a wooden
" rule . it may be that there are some minor
deficiencies herd and there which call for
rectification . The time can certainly set right
such matters.

24. The facts and circumstances of the
case show that issuance of the letter of intent
and grant of permission to the petitioner trust
have been unnecessarily delayed by insisting
upon another inspection.

25. In view of the aforesaid discussion,
the writ petition succeeds.

26. The writ petition is allowed and the
impugned order dated 19.07.99 as will as the
order dated 15.09.1999 (Annexure 26 to the
writ petition, and Annexure 1 to the
additional
affidavit
of
the
petitioner
respectively) are quashed. The respondent
no.1 is directed to pass appropriate orders of
permission on the application of the petitioner
trust for commencing medical college as per
the Scheme submitted, within four weeks.
Petition Allowed.

25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7('$//$+$%$'
'$7('$//$+$%$'
%()25(
%()25(
7+( +21·%/( $. <2* -
7+( +21·%/( $. <2* -

&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

%DEX 5DP DQRWKHU
«3HWLWLRQHUV
9HUVXV
'HSXW\
&DQH
&RPPLVVLRQHU
0RUDGDEDG
'LYLVLRQ 0RUDGDEDG RWKHUV«5HVSRQGHQWV

&RXQVHO IRU WKH 3HWLWLRQHU
6KUL 9HHU 6LQJK
6KUL 5. 0LVUD
&RXQVHO IRU WKH 5HVSRQGHQWV
6&
6KUL 6KDVKL 1DQGDQ

&RQVWLWXWLRQ
RI
,QGLD
$UWLFOH

$SSOLFDQWV DSSRLQWHG DV 3DUFKL 9LWUDN LQ FDQH
VRFLHW\
RIILFH
,QLWLWDOO\
SURPRWHG
DV
VHDVRQDO FOHUNV WUHDWLQJ WKHP WR EH HOLJLEOH
IRU SURPRWLRQ LQ WKH EHOLHI WKDW μ3UDWKPD¶ LV
HTXLYDOHQW WR +LJK 6FKRRO 6XEVHTXHQWO\ RQ
GHWHFWLRQ
RI
PLVWDNH
SHWLWLRQHUV
ZHUH
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
66
UHYHUWHG
WR
RULJLQDO
SRVWV
WKH\
GLG
QRW
SRVVHVV UHTXLVLWH PLQLPXP TXDOLILFDWLRQ RI
+LJK 6FKRRO
+HOG
3HWLWLRQHUV KDYH QRW ILOHG V\OODEXV RU WKH
FHUWLILFDWH RI μ3UDWKDPD¶ WR VKRZ WKDW +LQGL
6DKLW\D
6DPPHODQ
FODLPV
LWV
VDLG
H[DPLQDWLRQ DV HTXLYDOHQW WR μ+LJK 6FKRRO¶
7KLV
&RXUW
WDNHV
MXGLFLDO
QRWLFH
RI
WKH
(GXFDWLRQDO
&RGH
RI
83

(GQ
&RUUHFWHG XS WR SXEOLVKHG E\
6HFUHWDU\
WR
*RYHUQPHQW
(GXFDWLRQ
'HSDUWPHQW 83 ZKLFK GRHV QRW UHFRJQLVH
μ3UDWKDPD¶
RU
DQ\
RWKHU
H[DPLQDWLRQ
FRQGXFWHG
E\
+LQGL
6DKLW\D
6DPPHODQ¶
$OODKDEDG
$JDLQ 0DQXDO RI *RYHUQPHQW
2UGHUV 5HYLVHG (GLWLRQ &KDSWHU
DW SDUWLFXODU SDWH UHSURGXFHV 20 1R
,, GDWHG -XQH 9RO ,,
GRHV QRW VXSSRUW WKH 3HWLWLRQHU¶V
FDVH 1R
VWDWXWHRUGLQDQFH RU 5HJXODWLRQ RU DQ\ RWKHU
*RYHUQPHQW RUGHU ZDV HLWKHU ILOHG LQ WKH
FDVH RI 9LVKDPEKDU 6LQJK 6XSUD RU DQ\ RI
LW LV ILOHG LQ WKH SUHVHQW FDVH
7KHUH LV QR
PDWHULDO
WR
VKRZ
WKDW
+LQGL
6DKLW\D
6DPPHODQ FODLPV LWV μ3UDWKDPD¶ H[DPLQDWLRQ
HTXLYDOHQW WR +LJK 6FKRRO 3DUD
&DVH ODZ UHIHUUHG
&0:
1R

RI

GHFLGHG
RQ

By the Court

1. Babu Ram and Harbir Singh, the two
Petitioners have flied this petition under
Article 226, Constitution of India claiming a
writ of certiorari to quash the order dated 19th
November 1994 (Annexure-1 to the Writ
Petition) in compliance to the Resolution
dated 28th February 1994 (Annexure-1A to the
Writ Petition) as well as writ of mandamus
directing the Respondents not to interfere with
working of the Petitioners as Seasonal Clerks
and pay salary to them accordingly.

2. Briefly stated facts are that Petitioners
were appointed as Parchi Vitrak in the Office
of Cane Society, Bijnor in the year 1977- 78
respectively. Question arose for making
promotion to the post of seasonal Clerks,
which required High School as minimum
qualification.

3. In Paragraph 4 of the petition is
alleged that Petitioners had passed "Prathma"
examination from Hindi Sahitya Sammelan,
Allahabad. According to the Petitioners, the
said examination is equivalent to High School
. Reliance has been placed on a Notification
on the subject purported to been issued by the
Central Government (Annexure-2 to the Writ
Petition).

4. It appears that petitioners were
initially promoted treating them to be eligible
for promotion on the belief that they were as
good as 'High School' on having passed
"Prathama", and that they were at par with a
person who had passed High School from
U.P. Board. It appears, subsequently this
mistake was detected by the employer and
resolution was passed to revert such persons
to their original post on the ground that they
did
not
possess
requisite
academic
qualification of High School. Accordingly,
impugned order dated 19th November 1994
was passed.

5. Feeling aggrieved, Petitioners have
come this Court and seek to challenge the
aforesaid impugned orders (Annexures-1 and
1-A to the Writ Petition)

6. A Counter Affidavit has been filed on
behalf of Respondents nos. 1,2 and 3. In
Paragraphs 6 and 9 of the Counter Affidavit it
is stated the Petitioners did not fulfil
educational qualification prescribed by the
relevant service regulations. According to the
contesting respondents minimum qualification
prescribed is High School and Petitioners did
not possess the same as they, admittedly,
passed "Prathama" examination conducted by
Hindi Sahitya Sammelan. According to the
contesting
Respondents
"Prathama
examination of Hindi Sahitya Sammelan is
not equivalent to High School of U.P. Board .
Copy of the resolution deciding to revert has
been filed as (Annexure CA-1 to the Counter
affidavit).
1ALL] Babu Ram and another V. Dy. Cane Commissioner, Moradabad and others 67

7. A Rejoinder Affidavit has been filed
denying
aforesaid
stand
taken
by
the
contesting Respondents and it is stated that
this Court vide judgment and order dated
March 20, 1997 in Civil Misc. Writ Petition
No. 135 of 1995 (Vishambhar Singh and
others versus Cooperative Cane Development
Union Limited, Nagina and others) and other
connected petitions has held that 'High
School'
qualification
mentioned
in
the
regulation did not suggest that candidate
should
have
passed
"High
School"
examination conducted by U.P. Board only.
According to the learned Single Judge use of
word "High School" prescribing educational
qualification in relevant regulation, meant and
included in it other recognised equivalent
examinations, e.g. SSC, CBSC, etc.. Copy of
said judgment has been filed as Annexure-1 to
the Rejoinder Affidavit.

8. Learned counsel for the Respondent
with reference to the averments contained in
Paragraph 6 of the Counter Affidavit, drew
notice of this Court to (Annexure-2 to the
Writ Petition) and submitted that a bare
perusal of the said Annexure-2 to the Writ
Petition would show that by no stretch of
imagination 'Prathama' examination of Hindi
Sahitya
Sammelan
can
be
treated
as
equivalent to 'High School' of U.P. Board/or
for that matter any other examination
recognised as equivalent to High School.

9. Annexure-2 to the Writ Petition
clearly indicates that "Prathama" examination
of Hindi Sahitya Sammelan is recognised for
limited purposes, namely, it is relevant for
treating
a
person
holding
'Prathama
Certificate' as having knowledge of Hindi
only up to High School level. The Central
Government Notification, filed as annexure 2
to the Writ Petition, in so many words lays
down that "Prathama" examination of Hindi
Sahitya Sammelan cannot be treated at par or
equivalent to High School.

10. Again, before this Court, in the case
of Vishambhar Singh (supra), the question
whether " Prathama" should be treated
equivalent to High School was neither arising
out of pleadings nor raised and it was decided
incidentally. The main question for decision
in the said case was regarding interpretation
of
the
expression
"High
School",
the
expression used in the concerned regulation.

11. The observation of the learned single
Judge regarding "Prathama" to be treated as
equivalent to High School is only 'per
ineuriam' and observation in this respect are
'sub silentio'. It is not a precedent and cannot
be treated as having binding force.

12. I called for the record of the case of
Vishambhar Singh (supra) and gone through
it. Perusal of the petition supports the above
observation; namely the main question arising
in the said case was whether an equivalent
examination conducted by other recognized
educational
body
was
included
in
the
expression High School or not. The
observation of the learned single Judge
regarding
"Prathama"examination

being
equivalent to High School appears to have
been
made
on
the
basis
of
certain
correspondence of the University (filed as
Annexure RA-2 to the Rejoinder Affidavit in
that case) which was not the whole of the
story. There is no reference to syllabus or
statutes or ordinance of the Allahabad
University.

13. Petitioners have not filed syllabus or
the certificate of "Prathama" to show that
Hindi Sahitya Sammelan claims if said
examination as equivalent to 'High School'.
This Court takes judicial notice of the
Educational Code of U.P., 1958 Edn.
(Corrected up to 31-12-1962) published by
Secretary
to
Government,
Education
Department, U.P. which does not recognise
'Prathama'
or
any
other
examination
conducted by Hindi Sahitya Sammelan,
Allahabad. Again Manual of Government
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
68
Orders (Revised Edition), 1981 Chapter 136
at particular page 482- reproduced- OM No.
8825/II-297-39 dated June 03, 1940- Vol. IIdoes not support the petitioner's case. No
Statute/Ordinance or Regulation or any other
Government Order was either filed in the case
of Vishambhar Singh (supra) or any of it is
filed in the present case. There is no material
to show that Hindi Sahitya Sammelan claims
its "Prathama" examination equivalent to
High School.

14. In view of the above I find no
manifest error apparent on the face of record
calling for interference with the decision
taken by the Respondents vide impugned
resolution dated 28th October 1994 and
consequently order dated 19th November
1994. Writ Petition fails and is, accordingly,
dismissed.

15. In the facts of the case particularly
when Petitioners who claim to be promoted,
though under mistake of fact, are denied relief
and they are persons getting meagre salaries
as Parchi Vitrak in Sugar Cane Societies, I
direct that parties shall bear their own costs.
Petition Allowed.

25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$'
'$7(' $//$+$%$'
%()25(
%()25(
7+( +216·%/( $.<2* -
7+( +216·%/( $.<2* -

&LYLO PLVF ZULW SHWLWLRQHU QR RI

6PW 1LUPDO 5DQL
«3HWLWLRQHU
9HUVXV
6WDWH RI 83 RWKHUV
«5HVSRQGHQW
&RXQVHO IRU WKH 3HWLWLRQHU
6KUL +1 7ULSDWKL
&RXQVHO IRU WKH 5HVSRQGHQWV
6&

83
+LJK
6FKRRO
DQG
,QWHUPHGLDWH
(GXFDWLRQ $FW UHDGZLWK 83 +LJK VFKRRO DQG
,QWHUPHGLDWH &ROOHJHV SD\PHQW RI 6DODULHV
RI 7HDFKHUV DQG RWKHU (PSOR\HHV $FW
± 5HPRYDO RI 7HDFKHUV RQ JURXQG RI DEVHQFH
RI
UHTXLVLWH
WUDLQLQJ
TXDOLILFDWLRQ
7HUPLQDWLRQ
RUGHU
SDVVHG LQ YLRODWLRQ RI
SULQFLSOHV
RI
QDWXUDO
MXVWLFH
DQG
QRQ
±
DSSOLFDWLRQ PLQG ±+HQFH VHW DVLGH
+HOG
,Q
YLHZ
RI
WKH
XQUHEXWWHG
VWDWHPHQWV
FRQWDLQHG
LQ
WKH
ZULW
SHWLWLRQ
WKDW
WHUPLQDWLRQ
RUGHU
KDV
EHHQ
SDVVHG
LQ
YLRODWLRQ RI WKH SULQFLSOHV RI QDWXUDO MXVWLFH
WKDW VKH ZDV JLYHQ QR FKDUJHVKHHW WKDW QR
GLVFLSOLQDU\
HQTXLU\
ZDV
KHOG
DV
FRQWHPSODWHG
XQGHU
5HJXODWLRQV
IUDPHG
XQGHU WKH 83 KLJK 6FKRRO DQG ,QWHUPHGLDWH
(GXFDWLRQ
$FW
DQG
WKDW
WKH
HPSOR\HU
&RPPLWWHH
RI
0DQDJHPHQW
RI
WKH
,QVWLWXWLRQ KDG WDNHQ QR GHFLVLRQ RQ LWV
RZQ DQG WKDW VKH ZDV GLUHFWHG WR EH UHOLYHG
XQGHU WKH GLFWDWHV RI WKH 'LVWULFW ,QVSHFWRU
RI 6FKRROV ZLWKRXW JLYLQJ RSSRUWXQLW\ DV
FRQWHPSODWHG
XQGHU
ODZ
WKH
LPSXJQHG
RUGHUV DUH YLWLDWHG LQ ODZ DQG FDQQRW EH
VXVWDLQHG SDUD

By the Court

1. Petitioner was appointed as Assistant
Teacher in a recognized Junior High School,
which was upgraded to High School and
Intermediate level. Detailed facts have been
mentioned in the Writ Petition. Institution
(Kunwar Ranjit Singh Inter College, Nagariya
Parikshit, Air Force, Bareilly) was getting
grant-in-aid and the provisions of U.P. High
Schools and Intermediate Colleges (Payment
of Salaries of Teachers and other Employees)
Act, 1971 are applicable to it.

2. Petitioner received her salary when the
College came on grant-in aid list in 1994 and
she was paid until impugned order dated 9th
August 1995 (Annexure-IV to the Writ
Petition) and consequential order dated 31st
August 1995 (Annexure-XI to the Writ
Petition) were passed.

3. Petitioner has passed High School and
Intermediate Examinations of U.P. Board,