# Vijay Bhan Singh Kasana v. The State of U.P. & others

- **Citation:** (2005) 1 ILRA 342
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-09-08
- **Case number:** Special Appeal No. 86 of 2005
- **Bench:** Ajoy Nath Ray, C.J. Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-bhan-singh-kasana-v-the-state-of-u-p-others-40449
- **Pages:** 8

## Headnote

Constitution
of
India-
Article
226-
Cancellation of appointment- Petitioner
selected as Constable in P.A.C.-false
declaration concealing involvement in
Criminal proceeding- within 3 days of
first declaration given-another affidavit
disclosing criminal cases- cancellation of
appointment held- proper- Single Judge
rightly not exercised discrianary power.
1 All] Vijay Bhan Singh Kasana V. The State of U.P. and others
343
Held- Para 6

In these circumstances, cancellation of
the provisional selection did not call for a
prior hearing to be given. The facts were
quite sufficient and practically admitted.
Discretionary
orders
in
the
writ
jurisdiction should not be exercised in
favour
of
the
writ
petitioner
who
commits intentional lapses. The appeal is
summarily rejected on merits.
Case law discussed:
JT 1998 (9) SC 429

## Text

342 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
instance given in the counter illustration
to S. 114".

4. It is further submitted by learned
counsel appearing on behalf of the tenantpetitioner that the petitioner having
discharged his burden by making a
statement that the service of summons has
in fact never been done and that he has
never refused to receive the registered
letters/summon and further that the said
refusal has been manipulated. In view of
the law laid down, referred to above, the
order to proceed ex parte by the
prescribed authority is liable to be set
aside. Learned counsel for the tenantpetitioner further relied upon a decision of
the apex court reported in 1978 ARC, 496
Ramji Dass and others vs. Mohan Singh,
wherein the apex court has held as under:-

"...After having heard counsel, we
are inclined to the view that, as far as
possible, Court's discretion should be
exercised in favour of hearing and not to
shut out hearing. Therefore, we think that
the order of the High Court should not
have been passed in the interests of justice
which always informs the power under S.
115 C.P.C. We, therefore, set aside that
order and also the ex parte decree. We
direct the trial court to take back the suit
on file and proceed forthwith to trial."

5. In view of what has been stated
above, the orders passed by the prescribed
authority impugned in the present writ
petition dated 8th September, 2003 and
15th February, 2003 deserves to be
quashed. The matter now will go to the
prescribed authority to be decided in
accordance with law after affording an
opportunity of hearing to the tenantpetitioner.

6. In the result, the writ petition
succeeds and is allowed. The order dated
8th September, 2003, passed by the
prescribed authority, Annexure-2 to the
writ petition and the order dated 15th
February, 2003, is quashed. The matter
now will go back to the prescribed
authority to be decided in accordance with
law after affording an opportunity of
hearing to the tenant-petitioner. Since the
matter is old, the prescribed authority is
directed to decide the application filed by
the land lord -respondent for release of
the accommodation in dispute within a
period of sic months' from the ate of
presentation of a certified copy of this
order before him.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD: 24.2.2005

BEFORE
THE HON'BLE AJOY NATH RAY, C.J.
THE HON'BLE ASHOK BHUSHAN, J.

Special Appeal No. 86 of 2005

Vijay Bhan Singh Kasana
...Petitioner
Versus
The State of U.P. & others ...Respondents

Counsel for the Petitioner:
Sri Mithilesh Kumar Tiwari

Counsel for the Respondents:
S.C.

Constitution
of
India-
Article
226-
Cancellation of appointment- Petitioner
selected as Constable in P.A.C.-false
declaration concealing involvement in
Criminal proceeding- within 3 days of
first declaration given-another affidavit
disclosing criminal cases- cancellation of
appointment held- proper- Single Judge
rightly not exercised discrianary power.
1 All] Vijay Bhan Singh Kasana V. The State of U.P. and others
343
Held- Para 6

In these circumstances, cancellation of
the provisional selection did not call for a
prior hearing to be given. The facts were
quite sufficient and practically admitted.
Discretionary
orders
in
the
writ
jurisdiction should not be exercised in
favour
of
the
writ
petitioner
who
commits intentional lapses. The appeal is
summarily rejected on merits.
Case law discussed:
JT 1998 (9) SC 429

(Delivered by Hon'ble A.N. Ray, C.J.)

1. This is for admission of Special
Appeal from an order of Hon'ble Mr.
Justice
D.P.
Singh
dismissing
the
appellant's writ petition filed in the Court
below. The writ petitioner- appellant had
been provisionally selected on 7.12.2001
as a constable in the Provincial Armed
Constabulary and he had filed an affidavit
at that time stating that he was not
involved in any criminal case. That
affidavit was false, he was involved in
three cases. After about one and a half
year on 5.5.2003 he tendered the second
affidavit stating about his involvement in
the criminal cases and that he had
mistaken by not mentioned it earlier.
Within three days of that second affidavit
i.e. on 8.5.2003, the authority pointed out
that a police verification had already
revealed his involvement in the criminal
cases.
As
such
on
20.5.2003
his
provisional selection was cancelled.

2. The learned Single Judge has
written in the judgment that the second
declaration of 5.5.2003 was filed only
after the police verification had revealed
the involvement of the petitioner in three
criminal cases.

3. There is no ground of appeal in
the memorandum submitting that this
finding of his Lordship was a erroneous
finding of fact. It is good that there is no
such ground because even if the ground
were there it would have to be rejected. It
is impossible to believe that in three days
between 5.5.2003 and 8.5.2003, the police
verification had been commenced and
concluded and that such commencement
had been made only because of the
second
affidavit
filed by
the writ
petitioner.

4. It is quite clear that the writ
petitioner tried cleverly to conceal his
earlier misdemeanor by filing the second
affidavit close on to his transfer and
posting in a particular battalion.

5. The case relied upon by the
appellant being that of Commissioner of
Police, Delhi and anr. Vs. Dhaval Singh
reported in JT 1998 (9) SC 429 is
absolutely different on the most crucial
fact. There the perspective employee
involved had himself said about his
mistake within a few months after the first
misdeclaration and it was not a question
of him trying to cover up a mistake after
coming to know that he had already been
found out.

6.

In
these
circumstances,
cancellation of the provisional selection
did not call for a prior hearing to be given.
The facts were quite sufficient and
practically admitted. Discretionary orders
in the writ jurisdiction should not be
exercised in favour of the writ petitioner
who commits intentional lapses. The
appeal is summarily rejected on merits.
Appeal Dismissed.
---------
344 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD: 18.3.2005

Before
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 8783 of 2002

Umesh Chandra Pandey
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Shashi Nandan
Sri G.K. Singh
Miss. Pooja Agarwal

Counsel for the Respondents:
S.C.

U.P. Government Servant seniority rules
1991- Rule 8 (2) read with U.P. Police
Training College Manual-Para 4`1)5)-
Mode of seniority-Petitioner approved
and declared successful for the post of
sub inspector in the year 1987-88- but
not send on training- despite of the fact
writ
petition
was
allowed-specific
direction issued by the Court- second
time of litigation-representation decided
by
the
authorities-without
any
discussions on merit- other candidates
seniority fixed w.e.f. 87-88, where as the
petitioner
has
been
shown
in
the
gradation list of 1994-held- illegal-
petitioner also entitled to be inlisted in
the gradation list of 87-88- direction
issued accordingly.

Held- Para 16

If the petitioner had been appointed
alongwith other candidates in the year
1989,
he would
have been
placed
according to the seniority as per the
merit list of 1987-88. Since he was
discriminated, he had to pursue his legal
remedy by filing a writ petition which
was eventually allowed. This Court had
passed the judgment dated 15.3.1991,
but it took another three years for the
respondents to issue a letter dated
27.6.1994 when contempt proceedings
were staring at their faces. The delay in
appointing the petitioner was caused by
the respondents and, therefore, the
petitioner cannot be made to suffer.
Case law discussed:
1998(5) SCC-246
1994 Scc (L.85)1158

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

1. An advertisement appeared in the
newspaper inviting applications from the
public for appointment to the post of Sub
Inspector (Civil Police) for the session
1987-88. The petitioner applied and
qualified for the interview in which he
was also declared successful. However,
the petitioner was prevented from being
sent for training at the Police Training
College,
Moradabad
whereas
other
persons of his batch were sent for training
and thereafter were posted at various
police stations in the State of U.P. Since
the petitioner was discriminated, he and
other similarly situated persons filed writ
petition no. 18939 of 1989 before this
Hon'ble Court. This petition was allowed
by a judgment dated 15.3.1991. This
Court
held
that
the
remaining
39
vacancies for the session 1987-88 shall be
filled up from the remaining candidates of
the select list from Sl. No. 414 onwards.
The operative portion of the judgment is
quoted herein:-

"All these writ petitions are therefore
disposed of directing the respondents to
fill up the aforesaid 39 vacancies from the
residuary candidate who are placed next
to the selected candidates in the selection
list starting from serial no,. 414. The
respondents will and offers to all the
candidates stating from serial no. 414
1 All] Umesh Chandra Pandey V. State of U.P. and others
345
upto last petitioner of all the categories in
the
selection
list
and
offer
the
appointment
to
them
strictly
in
accordance with the merit list subject to
medical fitness and cut off percentage in
respective categories. No order as to
costs."

2. It further transpires that a Special
Leave Petition was preferred by the State
of U.P. before the Supreme Court of India
which was dismissed by a judgment dated
16.9.1991. Inspite of the dismissal of the
Special Leave Petition, the petitioner was
not appointed and has compelled to file a
Contempt Petition No. 431 of 1994 in
which the Special Secretary (Home) was
directed to appear in person. Eventually ,
a letter dated 27.6.1994 was issued
indicating therein that in pursuance of the
select list of 1987-88, the petitioner was
directed to report for training before the
Police Training College, Moradabad on or
before 7.7.1994. The said letter also
indicated that the order was being issued
in compliance of the orders of the
Hon'ble High Court. The petitioner
further stated that based on the aforesaid
order, he appeared before the Police
Training College, Moradabad and after
completing his training, was placed as a
Sub Inspector. However, the petitioner
was given the placement on the basis of
the list prepared in the year 1994 whereas
he should have been placed in the select
list of the year 1987-88. The petitioner
made a detailed representation praying
that he should be given the correct
placement which remained pending and
eventually the petitioner again approached
this court by filing writ petition no. 53492
of 2000 which was disposed by a
judgement dated 11.12.2000 directing
respondent no. 2 to decide the matter by a
speaking order within four months. Based
on the directions of this Court, the Deputy
Inspector
General
of
Police
(Establishment)
UP
at
Allahabad,
respondent no. 2 passed the impugned
order dated 12.6.2001 rejecting the claim
of the petitioner holding that the petitioner
was not entitled to be placed in the list of
1987-88. Consequently, the present writ
petition has been filed praying for the
quashing of the order dated 12.6.2001,
passed by respondent no. 2 and further
praying
for
a
writ
of
mandamus
commanding respondent no. 2 to place the
petitioner as per his merit in the gradation
list of the year 1987-88 and grant all
consequential benefits.

3. In the writ petition, the petitioner
further contended that one Sunder Singh
was not sent for training along with is
batch mates. He filed a civil misc. writ
petition no. 9265 of 1985, which was
dismissed on 16.3.1990 by the High
Court, against which he preferred a
special leave petition which was allowed
by
judgment
dated
31.1.1994.
The
Supreme Court directed the respondents
to consider his case for promotion as Sub
Inspector and to fix his seniority from the
date when his juniors were promoted with
all consequential benefits. The petitioner
submitted that based on the directions of
the Supreme Court, Sri Sunder Singh was
placed as a Sub Inspector and was given
consequential placement and seniority
with retrospective effect, i.e., from the
date when his juniors were promoted. On
the other hand the petitioner has been
discriminated and has not been placed in
the Gradation list of 1987-88.

4. Heard Sri Shashi Nandan, the
learned Senior Advocate assisted by Miss
Pooja Agarwal for the petitioner and the
346 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
learned
Standing
Counsel
for
the
respondents.

5. Learned counsel for the petitioner
submitted that as per the judgment of this
Court dated 15.3.1991 the petitioner was
appointed as a Sub Inspector for the
session 1987-88 from the original merit
list prepared by the respondent and
therefore, he should be placed in the
Gradation list of 1987-88 and should not
be placed in the Gradation list of 1994 as
is also clear from the letter of the
respondents
dated
27.6.1994.
The
petitioner further submitted that in view
of Rule 8 (2) of the U.P. Government
Servant
Seniority
Rules
1991,
the
petitioner was also entitled to be given the
seniority as shown in the merit list. In
support of his submission, the learned
counsel for the petitioner has relied upon
a decision of Surendra Narain Singh
and others vs. State of Bihar and others
(1998) 5 SCC 246.

6. On the other hand the learned
standing
counsel
appearing
for
the
respondents submitted that since there
was no provision of making a waiting list,
the petitioner was not selected from the
original select list but was appointed
subsequently
in
pursuance
of
the
judgment of the High Court and was
placed in the Gradation list of the year
1994 when he was appointed and that he
cannot be placed in the Gradation list of
the year 1987-88 with retrospective effect.
The learned counsel for the petitioner
further relied upon paragraph 41 (5) of the
U.P. Police Training College Manual
which states that the list has to be
prepared in the order of seniority
determined
according
to
the marks
obtained in the final exams. In support of
his submission learned counsel further
relied upon decision of the Supreme Court
in Gujrat State Deputy Executive
Engineers Association vs. State of
Gujrat and others, 1994 SCC (L &S)
1159, in which the Supreme Court held
that unless the government had acted
arbitrarily, the High Court could not
direct the Government to appoint the
candidates from the waiting list in the
vacancies of the relevant years. The
respondents further submitted that the
case of Sunder Singh was different and
that the respondents gave him the
seniority with retrospective effect on
account of the directions issued by the
Supreme Court and submitted that the
petitioner was not discriminated.

7. After considering the submissions
made by the parties, I am of the opinion
that the writ petition is liable to be
allowed.

8. This Court had directed the
respondents to decide the representation
of the petitioner. I have perused the
impugned order and I find that the
authority has only narrated the stand taken
by both the parties and thereafter
concluded by rejecting the representation
of the petitioner. No reasons have been
given indicating as to why the application
of the petitioner had been rejected. In my
opinion, the authority has not applied its
mind. The authority was required to pass
a reasoned order which does not exist in
the present case.

9. U.P. Government Servants
Seniority Rules, 1991 have been framed
under the proviso to Article 309 of the
Constitution of India. These Rules are
applicable
to
government
servants
including the petitioner and which is
1 All] Umesh Chandra Pandey V. State of U.P. and others
347
admitted by the respondents. Rule 8 is
quoted herein below:-

"8. Seniority where appointments
made by promotion and direct recruit:-
(1) Where according to the service rules
appointments are made both by the
promotion and by direct recruitment, the
seniority of persons appointed shall,
subject to the provisions of the following
sub rules, be determined from the date of
the
order
of
their
substantive
appointments, and if two or more persons
are appointed together, in the order in
which their names are arranged in the
appointment order,:

Provided that if the appointment
order specifies a particulars back date,
with effect from which a person is
substantively appointed, that date will be
deemed to be the date of order of
substantive appointment and, in other
cases, it will means the date of issuance of
the order;

Provided further that a candidate
recruited directly may lose his seniority, if
he fails to join without valid reasons,
when vacancy if offered to him the
decision of the appointment authority as
to the validity of reasons, shall be final.

(2) The seniority inter se of persons
appointed on the result of any one
selection:-

(a)
through
direct
recruitments,
shall be the same as it is shown in the
merit list prepared by the Commission
or by the Committee, as the case may
be;
(b)
by promotion, shall be as
determined in accordance with the
principles laid down in Rules 6 or Rule
7, as the case may be, accordingly as
the promotion are to be made from a
single feeing cadre or several feeding
cadres."

10. From a perusal of the aforesaid it
is clear that the seniority of the candidate
would be such as shown in the merit list
in a particular selection. Paragraph 41 (5)
of the U.P. Police Training College
Manual is quoted herein below:-

"(5) The Examination Board shall
prepare a list of cadets who have attained
the requite degree of proficiency and shall
place those cadets in order of seniority
determined
according to
the
marks
obtained in the final examination."

11. From the perusal of the
aforesaid, it is clear that the list of
seniority would be of cadets which are
prepared in the order of seniority
determined
according to
the
marks
obtained in the final examination. Rule 8
(2) of the Rules 1991 and paragraph 41
(5) of the U.P. Police Training College
Manual speaks the same language and
makes it apparently clear that the seniority
would be determined as shown in the
merit list.

12. The petitioners and other
candidates were selected in the session of
1987-88.
Others
were
given
their
placement earlier whereas the petitioner
was denied an appointment for reasons
best known to the respondents. The
petitioner filed a writ petition and
succeeded in which this Hon'ble Court by
judgement dated 15.3.1991 directed the
respondents to appoint the petitioner from
the same merit list. Based on this
judgment, the respondent issued a letter
dated 27.6.1994 which indicates that the
petitioner was being appointed from the
348 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
same merit list of 1987-88. Therefore, in
view of the directions of the High Court
and, in view of the letter dated 27.6.1994,
it is clear, that the petitioner was
appointed as a Sub Inspector from the
same merit list of 1987-88 and on the
basis of the same selection. Thus, in my
view, the seniority of the petitioner has to
be determined on the basis of his
placement in the merit list of 1987-88 and
the petitioner, should be placed in the
gradation list of the year 1987-88 instead
of placing the petitioner in the gradation
list of 1994. This is on account of the fact
that the petitioner was appointed from the
same Select list of 1987-88.

13. The stand taken by the
respondents that there is no provision of a
waiting list is irrelevant and also devoid
of any merit. There is in fact no waiting
list. The petitioner has been appointed
from the remaining candidates of the
merit list of 1987-88. The directions given
by this Court in its judgment dated
15.3.1991
has
become
final.
The
petitioner was appointed from the merit
list of 1987-88 and, therefore, his
seniority was to be calculated on the basis
of the merit list of 1987-88. In my
opinion, the petitioner was entitled to be
placed in the gradation list of 1987-88.

14. Further I see no justification in
the stand taken by the respondents in so
far as the petitioner's case is concerned.
The respondents have given the seniority
to one Sunder Singh, who was similarly
placed with retrospective effect. The case
of Sunder Singh is on the same footing as
that of the petitioner and the respondents
should have also given the petitioner his
seniority with retrospective effect. The
petitioner has been discriminated by the
respondents by not giving the seniority to
the petitioner with retrospective effect.

15. The judgment cited by the
respondents, in my view, is not applicable
to the present facts and circumstances of
the case. This Court by judgment dated
15.3.1991 had directed the respondents to
give the appointments from the remaining
candidates from the merit list. That
judgment has become final, therefore, the
judgment cited by the Standing Counsel is
not applicable.

16. There is another aspect of the
matter.
If the petitioner had been
appointed alongwith other candidates in
the year 1989, he would have been placed
according to the seniority as per the merit
list
of
1987-88.
Since
he
was
discriminated, he had to pursue his legal
remedy by filing a writ petition which
was eventually allowed. This Court had
passed the judgment dated 15.3.1991, but
it took another three years for the
respondents to issue a letter dated
27.6.1994 when contempt proceedings
were staring at their faces. The delay in
appointing the petitioner was caused by
the
respondents
and,
therefore,
the
petitioner cannot be made to suffer.

17. In view of the aforesaid, the
impugned order dated 12.6.2001 cannot
be sustained and is quashed. The writ
petition is allowed. The petitioner is
entitled to be placed in the gradation list
of 1987-88. Consequently, mandamus is
issued to respondent no. 2 to forthwith
accord placement to the petitioner as per
his merit in the Gradation list of 1987-88
alongwith his batch mates and thereafter
accord all consequential benefits that may
arise.
---------
1 All] Dinesh Kumar V. State of U.P. and others
349
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 7.2.2005

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 17493 of 2004

Dinesh Kumar

...Petitioner
Versus
State of Uttar Pradesh and others

 ...Respondents

Counsel for the Petitioner:
Sri H.N. Shukla,
Sri R.R. Shukla

Counsel for the Respondents:
Sri K.N. Bind
S.C.

Constitution of India, Article 226-G.O.
dated 3.7.90- clause-7-Fair Price shopcancellation and appointment of Agent-
District Magistrate/S.D.M.-passed order
of cancellation on the basis of Gaon
Sabha resolution- without affording any
opportunity of hearing held- illegalclause-7 does not exclude the principle
of natural justice.

Held- Para 16

Therefore in Clause 7, the provision of
opportunity of hearing being afforded to
a person concerned against whom an
order is proposed to be passed must
necessarily be read, so as to make the
same inconformity with the requirement
of principle of natural justice. Clause 7
does not exclude the applicability of
principle
of
natural
justice.
The
contention raised on behalf of the
petitioner that no notice/opportunity of
hearing is required to be afforded to a
person, whose appointment of Fair Price
Shop Agent is to be cancelled merely
because a resolution by the Gaon Sabha
has been passed on certain irregularities,
cannot be legally accepted.
Case law discussed:
1986(4) SCC-537
AIR 1988-SC-686
AIR 1996 SC-1669
AIR 1998 SC 2526

(Delivered by Hon'ble Arun Tandon, J.)

1. Heard Sri H.N. Shukla, learned
counsel for the petitioner, Sri Kalp Nath
Bind, learned counsel for the respondent
no. 4 and learned Standing Counsel for
the respondent nos. 1 to 3.

2. Respondent no. 4, Manik Chand
was appointed as Fair Price Shop Agent
in respect of Gaon Sabha Chheechhna,
Teshildar
Machhalishahar,
district
Jaunpur,
Certain
complaints
were
received with regard to the distribution of
essential commodities by the said Fair
Price Shop Agent. On the receipt of
complaints, an enquiry into the allegations
made against the respondent no. 4, as Fair
Price Shop Agent was conducted. On the
basis of the report of the Tehsildar as also
on the basis of certain other materials as
have been noticed by the Sub Divisional
Magistrate, Machhalishahr, he passed an
order
dated
8th
September,
1998
cancelling
the
appointment
of
the
respondent no. 4 as Fair Price Shop
Agent. In the order reference has also
been made to the resolution of the Gaon
Sabha dated 5th July, 1998.

3. A day prior to the cancellation of
appointment of petitioner, there is an
order of Sub Divisional Magistrate,
Machhalishahr dated 7th September, 1998
appointing the present petitioner as Fair
Price Shop Agent in pursuance of the
resolution of the Gaon Sabha on the same
day i.e. 5th July, 1998, a copy of the said
appointment order has been filed as
Annexure no. 3 to the writ petition.