# University v. Mansoor Ali Khan has

- **Citation:** (2009) 2 ILRA 655
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-07-06
- **Case number:** Civil Misc. Writ Petition No. 32287 of 2009
- **Bench:** S. U. Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/university-v-mansoor-ali-khan-has-41406
- **Pages:** 2

## Headnote

U.P. State Universities Act-1973-Section
2 (19)-words and pharases -'Teacher' -
includes the principal also petitioner
claiming Salary-the period on which
worked as officiating principal -vacancy
of principal not filled for the last 6 yearssenior most lecturer entitled to work as
officiating
principal-held
entitled
for
salary.

Held: Para 6

Thus,
coming
back
to
the
original
position, we are of the view that we
cannot deviate ourselves from our earlier
stand as we have taken in C.M.W.P. No.
49172 of 2008. Having so distinguishing
feature between our decision relied upon
in earlier judgments and the judgment of
Daljeet Singh (supra) therefore, the writ
petition
is
disposed
of
accordingly,
however, without imposing any cost.
The respondents are directed to pay
salary and emoluments of the petitioner
for the post of Principal when he was
officiating as principal with in the period
of three months from the date of
communication of this order.

Case law discussed:
C.M.W.P. No. 49172 of 2008, 2007 (4) ESC
2261 (All) (DB), 1997(1) E.S.C. 164 (All),

## Text

2 All] Nasir Hasan V. D.D.C./Collector and others

655
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.07.2009

BEFORE
THE HON'BLE S. U. Khan, J.

Civil Misc. Writ Petition No. 32287 of 2009

Nasir Hasan

...Petitioner
Versus
D.D.C./Collector & others ...Respondents

Counsel for the Petitioner:
Sri Uttar Kumar Goswami

Counsel for the Respondents:
Sri Anuj Kumar
S.C.

U.P. Zamindari Abolition of Land Reforms
Rules-Section 176-A- Assami Patta can
not be granted exceeding 5 yearscontention
regarding
opportunity
of
hearing
before
cancellation-if
opportunity
given-what
would
be
plausible explanation-even before the
Court
nothing
disclosed-held-no
opportunity can be claimed as a matter
of right.
Case law discussed:
2007 (4) SCC 54, AIR 2000 SC 2783.

(Delivered by Hon'ble S.U. Khan, J.)

1. Learned counsel for the petitioner
states that Assami Patta was granted to
the
petitioner
on
12.06.1998
and
Consolidation Officer, district Bijnor
through order dated 22.12.2008 passed in
the case State Vs. Nasir Hasan directed
that name of the petitioner shall be
expunged from the Revenue Records. The
said order has been challenged through
this writ petition only on the ground that
opportunity of hearing was not provided
to the petitioner. By virtue of proviso to
Rule 176-A of U.P. Zamindari Abolition
and Land Reforms Rules no Assami Patta
can be granted for more than five years.
On repeated inquiry of the Court as to
what right the petitioner had to remain in
possession after 5 years from 12.06.1998
learned counsel for the petitioner could
not give any reply. The only argument
raised by the learned counsel for the
petitioner is that opportunity of hearing
ought to have been granted. Supreme
Court in Ashok Kumar Sonkar Vs.
Union of India, 2007 (4) SCC 54 and
AIR 2000 SC 2783 "Aligarh Muslim
University v. Mansoor Ali Khan has
held that if someone complains denial of
opportunity of hearing then he must show
that in case opportunity had been
provided, what plausible cause he would
have shown. In this case learned counsel
for the petitioner is unable to justify
petitioner's continuance in possession
after expiry of the period of Assami Patta.
In such circumstances impugned order
can be set aside and matter can not be
remanded for completion of formality of
use less opportunity of hearing.

2. Learned counsel for the petitioner
has argued that in several such cases
where question of cancellation of Assami
Patta even after 5 years was involved,
interim order have been passed. One of
such interim order is dated 17.03.2009
passed in writ petition no. 13715 of 2009
Liyakat Vs. D.D.C. Firstly it is as interim
order and secondly it appears the attention
of the Hon. Judges was not drawn to the
above authorities of the Supreme Court.

3. Accordingly, there is absolutely
no merit in the writ petition as admittedly
about six years period of patta has
expired.
Writ
petition,
therefore
dismissed.
---------
656 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.07.2009

BEFORE
THE HON'BLE AMITAVA LALA, J
THE HON'BLE SHISHIR KUMAR, J

Civil Misc. Writ Petition No. 62394 of 2008

Om Saran Tripathi

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

Counsel for the Petitioner:
Sri Arvind Srivastava
Sri Ashok Kr. Dubey

Counsel for the Respondent:
Sri R.B. Pradhan
S.C.

U.P. State Universities Act-1973-Section
2 (19)-words and pharases -'Teacher' -
includes the principal also petitioner
claiming Salary-the period on which
worked as officiating principal -vacancy
of principal not filled for the last 6 yearssenior most lecturer entitled to work as
officiating
principal-held
entitled
for
salary.

Held: Para 6

Thus,
coming
back
to
the
original
position, we are of the view that we
cannot deviate ourselves from our earlier
stand as we have taken in C.M.W.P. No.
49172 of 2008. Having so distinguishing
feature between our decision relied upon
in earlier judgments and the judgment of
Daljeet Singh (supra) therefore, the writ
petition
is
disposed
of
accordingly,
however, without imposing any cost.
The respondents are directed to pay
salary and emoluments of the petitioner
for the post of Principal when he was
officiating as principal with in the period
of three months from the date of
communication of this order.

Case law discussed:
C.M.W.P. No. 49172 of 2008, 2007 (4) ESC
2261 (All) (DB), 1997(1) E.S.C. 164 (All),

(Delivered by Hon'ble Amitava Lala, J.)

1. The petitioner has made this writ
petition to direct the respondents to pay
the salary and emoluments of the post of
Principal to the petitioner when he has
acted as Principal in the institution from
the month of July, 2008 till date. He relied
upon the judgments of this Bench dated
18th
September,
2008
passed
in
C.M.W.P. No. 49172 of 2008 (Dr. V.K.
Tiwari Vs. Director of Education &
others)

2. Learned Standing Counsel has
taken a different view in view of the
judgment report in 2007 (4) ESC 2261
(All) (DB) [Daljeet Singh Vs. State of
U.P. & others] to substantiate that there
is distinction between a government
servant who is promoted to higher post
and who is discharging duties of the
higher post on the exigencies. Mere
discharge of such duties in the higher post
cannot be treated as promotion, therefore,
the person acted as ad hoc Principal in the
institution
cannot
get
salary
and
emoluments of the regular Principal.

3. Mr. Arvind Srivastava, learned
counsel appearing for the petitioner, has
relied upon another Division Bench
judgment reported in 1997(1) E.S.C. 164
(All)[Km. Renu Tiwari and others Vs.
The
Director,
Higher
Education,
Allahabad (U.P.) and others]. In that
case
in
considering
the
respective
Regularization Rules, 1979 the Court held
that practice of adhocism has been
deprecated by the Supreme Court in
numerous cases. In a number of cases, the