# Vijnesh Kumar v. The D.M. & Anr

- **Citation:** (2013) 3 ILRA 1208
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-09-02
- **Case number:** Civil Misc. Writ Petition No.5077 of 1996
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijnesh-kumar-v-the-d-m-anr-42658
- **Pages:** 4

## Headnote

Constitution
of
India,
Art.
16-
Regularization-public appointment without
advertisement,
without
giving
equal
opportunity
to
all
eligible
persons-in
absence of statutory provision-relief for
absorption-not available.

Held:
Para-6
3 All] Vijnesh Kumar Vs. The D.M. & Anr.
1209
Thus in the absence of any statutory
provision and also in view of the admitted
factual position that the petitioner's initial
recruitment was not in accordance with the
constitutional
scheme
enshrined
under
Article 16 of the Constitution, the relief
sought by petitioner cannot be granted.

Case Law discussed:
2007(3)ADJ 138; 2007(3) ADJ 46; 2004(4)
ESC 2470-2005 ALJ 1006; 2004 (54) ALR 85;
2006(4) SCC 1; 2009(3)SCC 250; 2009(3)SCC
35; 2009(7) SCC 205; 2011(2) SCC 429

## Text

1208 INDIAN LAW REPORTS ALLAHABAD SERIES

3. very strong and sudden"

9. The word" violent" is defined by
Collins English Dictionary as under:

1. marked or caused by great
physical force or violence:a violent stab
2.(of a person) tending to the use of
violence, esp in order to injure or
intimidate others 3.marked by intensity of
any kind: a violent clash of colours
4.characterized by an undue use of force;
severe; harsh 5.caused by or displaying
strong or undue mental or emotional
force; a violent tongue 6.tending to distort
the
meaning
or
intent:
a
violent
interpretation of the text violently adv.
ETYMOLOGY C14:from Latin violentus,
probably from vis strength."

10. Thus, after reading the aforesaid
definition, it is apparent that the incident
caused by the forceful act can be said to
be caused by violent . When the snake
bites, definitely it uses its physical force
in doing so. Therefore, the said attack of
snake cannot be said to be natural or
ordinary one but it is an unnatural
accidental attack with physical force.

11. Therefore, I am of the view that
death
caused
by
snake
biting
is
necessarily an accidental death caused by
violent which is covered under the scope
of cover as is provided in the part II of the
Schedule of the Insurance Policy.

12. In the same circumstances the
High Court of Orissa dealing with the
case of death due to snake bite held that
such a death is unnatural/accidental death.
Therefore, it is covered under the
Insurance Policy and extended the benefit
of Rupee Five Lac (Rs.5,00000/-) of the
insurance amount in favour of the
claimant [Dhruba Chandra Behra Vs.
National Insurance Co. Ltd. and others
W.P. (C) No.11981 of 2009 decided on
13.1.2011].

13. Therefore, there is no iota of
doubts that the death of the petitioner's
husband is covered under the Insurance
Policy. That being so, the petitioner being
wife of the deceased is entitled to get the
insurance amount from the respondents.

14. In the result, the writ petition is
allowed with the direction to the opposite
parties to make payment of insurance
amount, i.e, Rs.5,00000/- ( Rupee five
lac) to the petitioner within one month
from the date of communication of this
order along with an interest at the rate of
Rs. 12/- per annum accrued from the date
of death of the petitioner's husband.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.09.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No.5077 of 1996

Vijnesh Kumar

 ...Petitioner
Versus
The D.M & Anr. ....Respondents

Counsel for the Petitioner:
Sri Ramendra Asthana

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Art.
16-
Regularization-public appointment without
advertisement,
without
giving
equal
opportunity
to
all
eligible
persons-in
absence of statutory provision-relief for
absorption-not available.

Held:
Para-6
3 All] Vijnesh Kumar Vs. The D.M. & Anr.
1209
Thus in the absence of any statutory
provision and also in view of the admitted
factual position that the petitioner's initial
recruitment was not in accordance with the
constitutional
scheme
enshrined
under
Article 16 of the Constitution, the relief
sought by petitioner cannot be granted.

Case Law discussed:
2007(3)ADJ 138; 2007(3) ADJ 46; 2004(4)
ESC 2470-2005 ALJ 1006; 2004 (54) ALR 85;
2006(4) SCC 1; 2009(3)SCC 250; 2009(3)SCC
35; 2009(7) SCC 205; 2011(2) SCC 429

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

1. Petitioner was engaged in Census
Department during the period of census
1991 and claiming absorption pursuant to
service rendered for a short time.

2. It is not disputed that the
petitioner was never appointed or engaged
after the advertisement of vacancies,
complying with the provisions of Article
16 of the Constitution of India, i.e., by
giving equal opportunity for public
employment to all eligible persons. The
petitioner also could not place before the
Court any statutory provision whereunder
he can claim absorption. Similar question
was considered in Imtiaz Ahmad Vs.
Regional Deputy Director of Census
Operation and others, 2007(3) ADJ 138
and referring to various Government
Orders dealing in para 7 it was held as
under:

"I have heard learned counsel for the
petitioner and perused the record. It is not
disputed that in certain broken spells as
and
when
census
operations
were
undertaken by the Government of India,
the petitioner was engaged in the census
department from time to time. The
aforesaid
appointment
was
purely
temporary and therefore after completion
of the work or due to reduction in the
establishment of census department, he
was
terminated
or
discontinued
whereagainst no grievance was raised by
the petitioner at any point of time. His
claim
is
now
confined
to
regular
appointment under the State Government
considering his status as a "retrenched
employee". For the purpose of the present
case, even if the petitioner is treated to be
a retrenched employee, learned counsel
for the petitioner failed to point out any
statutory provision or executive order
having force of law entitling the petitioner
for regular appointment in a class-III or
class-IV post under the State Government.
The government order dated 22.4.1987
placed on record as Annexure-1 to the
rejoinder affidavit shows that the Census
Directorate,
Government
of
India
communicated to all the Head of
Departments, District Magistrates and
other employment officers in the State of
U.P. that the employees who have worked
in the Census Department for about three
and half years in 1981 census operations
and some of them have crossed maximum
age required for employment in the
Government service and, therefore, they
were allowed relaxation of three years in
the age vide Government Order no.
41/2/1967-Karmik-2
dated
13.2.1985
extended upto 12.2.1988, and therefore
the said persons may be considered in the
service
of
the
State
Government
extending the said relaxation in age. The
aforesaid order, therefore, only provides
relaxation in maximum age but nowhere
shows that the process of recruitment
applicable to class-III and class-IV posts
in the state of U.P. shall not be followed
for appointment of the said retrenched
employees of the census department.
Moreover, a bare reading of the aforesaid
government order shows that it is
1210 INDIAN LAW REPORTS ALLAHABAD SERIES
applicable
to
such
employees
who
continuously worked for three and half
years pursuant to 1981 census and were
retrenched on 30.6.1984. On the contrary,
the petitioner was engaged for short
periods in 1981 and 1982 only, but there
is no continuous service of three and half
years as contemplated in the aforesaid
government
order.
Hence,
in
no
circumstance the said government order
help the petitioner in any manner. In the
state of U.P., recruitment to class-III posts
prior to 1989 was being governed by the
Subordinate Offices Ministerial Staff
(Direct Recruitment) Rules, 1975 which
were substituted by another set of rules on
16.3.1985, i.e., U.P. Subordinate Offices
Ministerial Staff (Direct Recruitment)
Rules, 1985which continued to hold field
until substituted in their entirety by U.P.
Procedure for Direct Recruitment for
Group "C" Posts (Outside the Purview of
The U.P. Public Service Commission)
Rules 2001. In all the aforesaid Rules,
there is no provision for appointment of a
retrenched employee without undergoing
the process of recruitment. Only certain
concessions in the matter of age and
educational qualifications etc. have been
provided but otherwise a retrenched
employee has to participate in the process
of
recruitment
with
other
eligible
candidates as and when the recruitment
process is initiated. In the matter of
selection and assessment of merit under
2001 Rules, certain weightage is provided
but there is no provision for regularization
of such employees to the exclusion of
regular process of recruitment. In view of
the statutory rules, no relief can be
granted to the petitioner contrary thereto."

3. A similar view has been taken by
a Division Bench of this Court (of which I
was
also
a
Member)
in
Sayed
Mohammad Mahfooz Vs. State of U.P.
and others 2007(3) ADJ 46.

4. Besides above, I may also place
on record that in certain cases some
persons who were engaged in election
office as Junior Clerks for some short
span from time to time were directed to be
regularised in some of the judgements of
Hon'ble Single Judges and one of such
judgment is in Writ Petition No. 52586 of
1999, Dinesh Kumar Shukla Vs. State of
U.P. and others. The aforesaid judgement
as well as others taking similar view were
assailed in intra-Court appeals before this
Court and all those appeals were allowed,
setting aside the judgements of Hon'ble
Single Judges and the judgment is reported
in 2004(4) ESC 2470=2005 ALJ 1006,
State of U.P. and others Vs. Sanjay
Kumar Pandey and other. The Division
Bench held that no regularisation or
absorption contrary to rules can be claimed.
Taking this view it also followed an earlier
Division Bench decision in State of U.P. Vs.
Rajendra Prasad, 2004(54) ALR 85.
Against the judgment of Division Bench in
Sanjay Kumar Pandey, the Special Leave
Petition No. 5735 of 2009 has also been
dismissed by Apex Court vide judgment
dated 22.08.2012.

5. The entire issue can also be
looked into in the light of Constitution
Bench decision in Secretary, State of
Karnataka Vs. Uma Devi 2006 (4) SCC
1 which has been followed recently also
in State of West Bengal & others Vs.
Banibrata Ghosh & others 2009 (3)
SCC 250; Council of Scientific &
Industrial Research & others Vs.
Ramesh Chandra Agarwal & another
2009 (3) SCC 35; General Manager,
Uttaranchal Jal Sansthan Vs. Laxmi
Devi & others 2009 (7) SCC 205; and,
3 All] Ram Yash Vs. State of U.P. and Ors
1211
State of Rajasthan and others Vs. Daya
Lal & others, 2011(2) SCC 429.

6. Thus in the absence of any
statutory provision and also in view of the
admitted
factual
position
that
the
petitioner's initial recruitment was not in
accordance with the constitutional scheme
enshrined under Article 16 of the
Constitution,
the
relief
sought
by
petitioner cannot be granted.

7. The writ petition lacks merit.
Dismissed. Interim order, if any, stands
vacated.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.08.2013

BEFORE
THE HON'BLE SIBGHAT ULLAH KHAN, J.

Misc. Single No.5337 of 2013

Ram Yash

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

Counsel for the Petitioner:
Sri Mata Prasad Yadav
Sri Brijesh Yadav 'Vijay'

Counsel for the Respondents:
C.S.C., Sri Azad Khan

Constitution of India, Art. 227- Mutation
order-passed by Tehsildar-based upon
patta alleged to be passed prior to 32
years-absolutely
no
explanation
regarding complete-silence for such long
spell of time-order passed by Tehsildarset-a-side-with
direction
to
initiate
disciplinary proceeding against erring
officer-any
proceeding
before
any
authority stand automatically quasheddamage for unauthorise possession- for
such period imposed-payable.

Held: Para-4
Accordingly, it is directed that in case
petitioner is in possession of the Gaon
Sabha land, he
must forthwith be
dispossessed. No further proceedings in
respect of entry of the name of petitioner
shall be taken as no patta was granted in
1975-76 to the petitioner. Exercising
powers under Article 227 of Constitution
of
India
mutation
order
dated
27(28).06.2008
is
set
aside.
Any
proceeding pending anywhere in respect
of the said plots before any of the courts
below shall not be proceeded with. Writ
of prohibition in this regard is issued.

Case Law discussed:
2012 (3) AWC 2226
(Delivered by Hon'ble Sibghat Ullah
Khan, J.)

1. Heard Sri M.P. Yadav, learned
counsel for petitioner and Sri Azad Khan,
learned counsel for respondent No.5,
Gaon Sabha.

2. Petitioner has come up with a
fantastic case to the effect that on
20.11.1975, some patta was proposed to
be granted to him by the Gaon Sabha of
village Bhagwaria and the proposal was
approved by the S.D.O. on 01.01.1976.
He filed application for mutation on the
basis of the said patta on 19.12.2007 (i.e.
after 32 years) before Deputy Collector,
Amethi. It is inconceivable that in case
some patta had been executed in favour of
the petitioner in the year 1975-76, his
name would not have been entered in the
revenue records immediately. There is
absolutely no explanation of silence of 32
years. It is very surprising that Tehsildar
Amethi on 27 (or 28) June, 2008 passed
mutation order in favour of petitioner.
Copy of that order has not been annexed.
Against the said order Suraj Prasad and
others filed revision (Case No.10/22,
Sarju Prasad (or Suraj Prasad Vs. Ram