# Vimlesh Lal v. State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 305
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-21
- **Case number:** Writ A No. 18562 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vimlesh-lal-v-state-of-u-p-ors-50886
- **Pages:** 9

## Headnote

C.S.C., Sri Brijesh Kumar, Sri Hausihla
Prasad
Mishra,
Sri
Jitendra
Narayan
Tripathi, Sri H.P. Singh

A. Service Law - UP Municipalities Act,
1916 - Section 34 - Promotion - Post of
Water Works Supervisor - Chairman of
Nagar Palika Parishad granted promotion
- However, District Magistrate set aside
promotion's order - Validity challenged -
Authority of District Magistrate, extent of
- Held, the District Magistrate's power is
traceable to S. 34(1-A) alone, which
authorizes him to prohibit the execution
of a resolution passed by a Municipality or
a Committee or an Officer etc., if he is of
opinion that the resolution or the order is
of a nature that may cause or tend to
cause danger to human life, health or
safety, or a riot or affray. That is the
limited authority of the District Magistrate
to interfere in the affairs of a Nagar Palika
or a Municipality - There is no other
power vested in the District Magistrate to
interfere with any decision made by the
Nagar Palika Board - Order passed by the
District Magistrate is absolutely without
jurisdiction and he could not have set
aside the promotion order made in the
petitioner's favour by the Chairman of the
Nagar Palika Parishad in the exercise of
his
power
to
appoint,
promote
etc.
employees of the Nagar Palika Parishad.
(Para 16 and 22)

Writ petition allowed. (E-1)

List of cases cited :-
306 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

2 All. Vimlesh Lal Vs. State of U.P. & Ors.
305
may add that the more serious the charge, the
more formal, elaborate and strict the procedure
has to be to prove it. After all, this Court does
not reappraise evidence in a secondary review,
but is obliged to see that there is procedural
fairness in the conduct of the inquiry. A
fundamentally flawed procedure adopted by the
Inquiry Committee has to be undone and the
consequences of it abated.

24. In the circumstances, this writ petition
succeeds and is allowed. The impugned order
dated 11.07.2022 passed by the Chairman, U.P.
Power Corporation Limited, Lucknow and the
appellate order dated 26.07.2023 passed by the
Board of Directors, U.P. Power Corporation
Limited, Lucknow are hereby quashed. The
petitioner shall be reinstated in service
forthwith. After reinstatement, it will be open to
the respondents to proceed with the inquiry
afresh from the stage of issue of the chargesheet, bearing in mind the guidance in this
judgment. It will also be open to the
respondents looking to the nature of the
charges, upon the petitioner's reinstatement,
either to suspend him pending inquiry or assign
him duties. The inquiry, if initiated, will be
expedited. In the event, the petitioner is placed
under suspension, he will be paid his
subsistence allowance regularly, without asking
him to furnish a non-alternative engagement
certificate. In case he is not suspended and still
proceeded with, the petitioner would be paid his
current salary regularly from the date of this
judgment. So far as the question of arrears of
pay etc. is concerned, that will abide by the
final result of the disciplinary proceedings, if
resumed against the petitioner as per liberty
given. If, however, no disciplinary proceedings
are taken, the petitioner shall be entitled to 25%
of his emoluments with all other consequential
benefits.

25. There shall be no order as to costs.
----------
(2024) 2 ILRA 305
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.12.2023
BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ A No. 18562 of 2023

Vimlesh Lal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shailesh Pandey

Counsel for the Respondents:
C.S.C., Sri Brijesh Kumar, Sri Hausihla
Prasad
Mishra,
Sri
Jitendra
Narayan
Tripathi, Sri H.P. Singh

A. Service Law - UP Municipalities Act,
1916 - Section 34 - Promotion - Post of
Water Works Supervisor - Chairman of
Nagar Palika Parishad granted promotion
- However, District Magistrate set aside
promotion's order - Validity challenged -
Authority of District Magistrate, extent of
- Held, the District Magistrate's power is
traceable to S. 34(1-A) alone, which
authorizes him to prohibit the execution
of a resolution passed by a Municipality or
a Committee or an Officer etc., if he is of
opinion that the resolution or the order is
of a nature that may cause or tend to
cause danger to human life, health or
safety, or a riot or affray. That is the
limited authority of the District Magistrate
to interfere in the affairs of a Nagar Palika
or a Municipality - There is no other
power vested in the District Magistrate to
interfere with any decision made by the
Nagar Palika Board - Order passed by the
District Magistrate is absolutely without
jurisdiction and he could not have set
aside the promotion order made in the
petitioner's favour by the Chairman of the
Nagar Palika Parishad in the exercise of
his
power
to
appoint,
promote
etc.
employees of the Nagar Palika Parishad.
(Para 16 and 22)

Writ petition allowed. (E-1)

List of cases cited :-
306 INDIAN LAW REPORTS ALLAHABAD SERIES
1. President, Nagar Palika Parishad, Sultanpur
Vs St. of U.P.; AIR OnLine 2019 All 2407

2. Subodh Kumar Gupta & ors.Vs St. of U.P.
through Principal Secretary & ors.; 2016 SCC
OnLine All 1358

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition under Article 226
of the Constitution is directed against the
impugned order dated 24.05.2023 passed
by the District Magistrate, Sonbhadra,
setting aside the promotion granted to the
petitioner by the Chairman, Nagar Palika
Parishad, Sonbhadra to the post of a water
works supervisor from the position of a
pump attendant.

2. In consequence of the impugned
order passed by the District Magistrate, the
petitioner stands reverted to the post of a
pump
attendant.
The
petitioner
was
appointed a pump attendant vide order
dated 29.11.2007 by the Executive Officer,
Nagar Palika Parishad, Sonbhadra. He
joined
service
on
04.12.2007.
The
petitioner was selected for the post of a
pump attendant, a Group-D post vide
Government Order No. (para no.4) dated
17.10.2007 after facing a duly constituted
selection committee for the purpose.
According to the petitioner, he is duly
qualified for the post of a water works
supervisor, a Class-III (Group-C) post. He
has earned his Intermediate Certificate
from the U.P. Board of High School and
Intermediate
Education
and
a
Trade
Certificate of Fitter from the I.T.I. He has
apprenticed at the Thermal Training
Institute,
UPRVUNL,
Obra,
District
Sonbhadra.
The
petitioner
has
been
discharging his duties sincerely, honestly
and with all competence at his command.
Respondent No.5, on the other hand, was
appointed a daily-wager on the Class-IV
post of a pump attendant with the Nagar
Palika Parishad, Sonbhadra on 01.01.1989.
He has been regularized in service on
09.12.2014. The fifth respondent has
completed his Junior High School in the
year 1983 and holds a I.T.I. Trade
Certificate. The fifth respondent also claims
to have passed the Prathama Examination
in 1997 from the Hindi Sahitya Sammelan,
Allahabad (now Prayagraj).

3. It is the petitioner's case that the
Director, Local Bodies, U.P. has issued an
order dated 6th December, 1980, where the
minimum
educational
qualifications
prescribed for a water works supervisor is
intermediate. The post of a water works
supervisor was vacant since long in the
establishment of the respondent, Nagar
Palika Parishad. The petitioner, qualified
for the post, moved an application seeking
consideration of his candidature by way of
promotion. The matter was referred for
guidance by the Executive Officer, Nagar
Palika Parishad, Sonbhadra to the Deputy
Director, Local Fund Account Department,
U.P., Vindhyachal Division, Mirzapur. This
reference for guidance appears to have
been made vide memo dated 04.09.2020. In
response, the Deputy Director, Local Fund
Account Department, Mirzapur, responded
vide his memo of 30th September, 2020,
wherein he suggested that the following
proceedings can be taken:

"(1) If in the past, promotion to
the post of a water work supervisor on a
regular basis has been done, on the foot of
whichever
educational
and
technical
qualifications, proceedings can be taken in
the same manner;

(2) If the post of a pump
attendant constitutes a feeding cadre for
2 All. Vimlesh Lal Vs. State of U.P. & Ors.
307
promotion to the post of a water work
supervisor, promotion can be made;

(3) Since it is a matter of
promotion, the question of reservation
would not be attracted."

4. The Nagar Palika Parishad,
Sonbhadra, accordingly, went about the
exercise of considering the case for
promotion and vide an office note, that is
annexed at Page Nos.49 and 50 of the
paper-book, a list of six employees, who
were eligible for promotion, was drawn up.
Four out of these were occupants of the
posts of beldar and two were pump
attendants. Out of the six, all the other five,
except
the
petitioner,
were
nonmatriculates. Respondent No.5 alone held
an
I.T.I.
Trade
Certificate
like
the
petitioner,
but
then
his
educational
qualifications were only a Junior High
School.
The
minimum
educational
qualification for the post of a water works
supervisor,
being
an
Intermediate
Certificate, the petitioner's case was
proposed for promotion by the Executive
Officer to the Chairman of the Nagar Palika
Parishad. The Chairman of the Nagar
Palika Parishad passed an order dated 22nd
October, 2020 promoting the petitioner to
the post of a water works supervisor.

5.

Challenging
the
aforesaid
promotion, respondent No.5, Kamlesh
Singh, instituted a writ petition before this
Court being Writ-A No.4791 of 2023,
praying for the following material relief:

"Issue a writ, order or direction in
the nature of mandamus commanding the
respondent no.2 to consider the claim of
petitioner for promotion on Class III post
(Jalkal Paryavekshak) within stipulated
time."

6. This Court disposed of the writ
petition not on merits, but permitting the
petitioner there to make a fresh detailed
representation to the District Magistrate
raising all his grievances and directing the
District
Magistrate
to
decide
that
representation by a speaking order within a
period of two months. The precise terms of
the order dated 21.03.2023 passed by this
Court in Writ-A No.4791 of 2023 read:

"Learned counsel for petitioner
submits that grievance of petitioner would
sufficiently be met in case representation of
petitioner
for
the
said
purposes
is
considered and decided in a time bound
manner.

Shri
Brijesh
Kumar,
learned
counsel for
respondents
and learned
standing counsel have no objection to the
same.

In view thereof, petitioner is
permitted to make a fresh detailed
representation to respondent no.2-District
Magistrate, District Sonbhadra raising all
his grievance, annexing therewith a copy of
this writ petition along with annexures and
all the documents in support of his claim
within a period of two weeks from today
along with a certified copy of this order.

In case such a representation is
moved by petitioner, respondent no.2 shall
consider and decide the same in accordance
with law by a reasoned and speaking order
within a period of two months from the
date a certified copy of this order along
with representation is placed before him.

It is made clear that this court has
not applied itself on the merits of the case
and all questions are left open to be
considered and decided by the competent
authority in accordance with law."
308 INDIAN LAW REPORTS ALLAHABAD SERIES

7. Acting on the said representation,
the
District
Magistrate,
Sonbhadra
constituted a Three Member Inquiry
Committee, comprising the Additional
District Magistrate (Finance and Revenue),
Sonbhadra, the Senior Treasury, Sonbhadra
and the Executive Officer, Nagar Palika
Parishad, Sonbhadra, asking them to submit
a clear report in the matter concerning the
validity of the petitioner's promotion,
which they should do after personally
hearing the petitioner. The Committee
reported that there was nothing to show
clearly that a post of water works
supervisor was sanctioned for the Nagar
Palika Establishment and there was no final
publication of the seniority list of Class-IV
employees
eligible
for
promotion,
rendering the petitioner's promotion legally
untenable.

8. The District Magistrate held on the
basis of the said report that the petitioner's
promotion made by the Chairman vide
order dated 22nd October, 2020 was illegal
and set aside the same vide his order dated
24th May, 2023.

9. It is this order that the petitioner
has impugned in the present writ petition.

10. In this case, when the matter came
up for admission on 22.11.2023, the
following order was passed:

"The
District
Magistrate,
Sonbhadra shall show cause by filing his
own affidavit under what authority of law
by which is meant the authority enjoyed
under the Statute, he could cancel an order
passed by the Chairman of the Nagar
Palika Parishad, Sonbhadra promoting the
petitioner. In putting in his answer, the
District Magistrate will bear in mind that
even a judicial order cannot confer
jurisdiction upon an authority, which he
does not posses under the law.

The District Magistrate will also
bear in mind that the order passed by the
Chairman and set aside by him cannot lead
to an approval of his action merely because
the Chairman's order is for some reason,
on facts or evidence, vitiated. If the District
Magistrate has no jurisdiction, all inquiries
undertaken by him, whether personally or
through a Committee of Officers serving in
the Collectorate, would be non est. The
aforesaid consideration shall be borne in
mind.

The personal affidavit, as above
indicated, shall be filed on or before
08.12.2023.

Mr.
H.P.
Mishra,
Advocate
holding brief of Mr. J.N. Tripathi, Advocate
accepts notice on behalf of respondent no.
5. He may seek instructions by the next date
fixed.

Mr. Dinesh Kumar Singh, learned
Additional Chief Standing Counsel accepts
notice on behalf of respondent nos. 1, 2 and
3. He will also seek instruction in the
matter.

Lay as fresh again on 08.12.2023
at 12:00 noon.

Till then, no recovery shall be
made from the petitioner pursuant to the
impugned order dated 24.05.2023 passed
by the District Magistrate, Sonbhadra.

Let a copy of this order be
communicated to the District Magistrate,
Sonbhadra by the Registrar (Compliance)
within 24 hours."

11. Heard Mr. Shailesh Pandey,
learned Counsel for the petitioner, Ms.
Monika Arya, learned Counsel appearing
on behalf of respondent Nos. 1, 2 and 3,
and Mr. H.P. Singh, learned Counsel
appearing on behalf of respondent No. 5.
2 All. Vimlesh Lal Vs. State of U.P. & Ors.
309

12. It is submitted by the learned
Counsel for the petitioner that the District
Magistrate has no jurisdiction or authority
under the Uttar Pradesh Municipalities Act,
1916 (for short, 'the Act of 1916') to
interfere and set aside an order of
promotion relating to a Class-IV employee
of the Nagar Palika Parishad, promoting
him to a Class-III post.

13. Now, in compliance with the order
requiring the District Magistrate to file a
personal affidavit showing cause on the
aforesaid plea of the petitioner, the District
Magistrate has filed his personal affidavit
dated 07.12.2023. In the said affidavit, he
has taken three pleas. The first is that the
promotion is bad because the process of
publication of the final seniority list of
Class-IV employees in the Nagar Palika
Parishad has not been adopted and the
promotion, for the said reason, is contrary
to rules. The second plea is that the District
Magistrate has passed the order impugned
in compliance with the orders of this Court
dated
21.03.2023
passed
in
Writ-A
No.4791 of 2023, and the third is a plea of
confession and avoidance, where the
District Magistrate has said in Paragraph
No.8 of the affidavit that he has no power
under the statute to interfere in the affairs
of the Nagar Palika Parishad. There is
dovetailed to this plea, a plea of avoidance
saying that he has acted in the matter in
deference to the command of this Court to
decide the fifth respondent's representation.

14. The moot question involved in
this case is: If the District Magistrate is
empowered under the Act of 1916 to
interfere with a promotion order relating to
a Class-IV employee passed by the Nagar
Palika Parishad Establishment, be it the
Chairman, the Executive Officer or the
Board?

15. Upon hearing learned Counsel for
the parties and a careful consideration of
the matter, what this Court finds is that the
District Magistrate has very little say in
matters of the Nagar Palika Parishad or a
Nagar Panchayat, functioning under the Act
of 1916. Section 34 is the only source of
power that the District Magistrate has to
interfere with the decisions of a Nagar
Palika Parishad. Section 34 reads:

"34.
Power
of
the
State
Government or the Prescribed Authority
or the District Magistrate to prohibit
execution
or
further
execution
of
resolution or order of [Municipality]. -
(1) [The Prescribed Authority may], by
order in writing, prohibit the execution or
further execution of a resolution or order
passed or made under this or any other
enactment by a [Municipality] or a
committee of a [Municipality] or a Joint
Committee or any officer or servant of a
[Municipality] or of a Joint Committee [if
in its opinion] such resolution or order is of
a nature to cause or tend to cause
obstruction, annoyance or injury to the
public or to any class or body of persons
lawfully employed [* * *] and may prohibit
the doing or continuance by any person of
any act in pursuance for or under cover of
such resolution or order.

(1A) The District Magistrate may,
within the limits of his district, by order in
writing, prohibit the execution or further
execution of a resolution or order passed or
made under this or any other enactment by
a] [Municipality] or a committee of a
[Municipality] or a Joint Committee or any
officer or servant of a [Municipality] or of a
Joint Committee if in his opinion such
resolution or order is of a nature to cause or
tend to cause danger to human life, health
or safety, or a riot or affray, and may
prohibit the doing or continuance by any
310 INDIAN LAW REPORTS ALLAHABAD SERIES
person of any act, in pursuance of or under
cover of such resolution or order.

(1B) the State Government may,
on its own motion or on report or complaint
received by order prohibit the execution or
further execution of a resolution or order
passed or made under this or any other
enactment by a] [Municipality] or a
committee of a [Municipality] or a Joint
Committee or any officer or servant of a
[Municipality] or of a Joint Committee, if
in its opinion such resolution or order is
prejudicial to the public interest, [or has
been passed or made in abuse of powers or
in flagrant breach of any provision of any
law for the time being in force,] and may
prohibit the doing or continuance by any
person of any act in pursuance of or under
cover of such resolution or order.

(2) Where an order is made under
sub-section (1) or (1-A)] [* * *], a copy
thereof with a statement of the reasons for
making it, shall forthwith be forwarded by
the Prescribed Authority 1 added bu
U.P.Act no 7 of 1949 2 added bu U.P.Act
no 7 of 1949 or the District Magistrate
through the Prescribed Authority, as the
case may be, to the State Government
which may thereupon, if it thinks fit,
rescind or modify the order.

(3) [* * *]

(4) Where the execution or
further execution of a resolution or order is
prohibited by an order made under subsection (1), (1-A) or (1-B) and continuing
in force, it shall be the duty of the
[Municipality], if so required by the
authority making the order under the said
sub-sections to take any action which it
would have been entitled to take, if the
resolution or order had never been made or
passed, and which is necessary for
preventing any person from doing or
continuing to do anything under cover of
the resolution or order of which the further
execution is prohibited."

16. The District Magistrate's power is
traceable to sub-Section (1-A) of Section
34 alone, which authorizes him to prohibit
the execution of a resolution passed by a
Municipality or a Committee or an Officer
etc., if he is of opinion that the resolution or
the order is of a nature that may cause or
tend to cause danger to human life, health
or safety, or a riot or affray. That is the
limited authority of the District Magistrate
to interfere in the affairs of a Nagar Palika
or a Municipality, as it was formerly called.
There is no other power vested in the
District Magistrate to interfere with any
decision made by the Nagar Palika Board,
its Chairman or the Executive Officer or a
Committee or an Officer thereof. Rather,
this Court is inclined to think that the
autonomy and independence of a Nagar
Palika is far more strenghtened and
requires to be more zealously protected in
view of inclusion of Part IX-A in the
Constitution by the Constitution (Seventyfourth Amendment) Act,
1992.
This
amendment elevates local bodies to a
constitutional status and attempts to effect
decentralization of democratic power. It
provides
a constitutional
bulwark to
strengthen local self-government, more
answerable to its
eloctorate
than
a
supervising agent of the State Government.
Part IX-A of the Constitution and all its
provisions would require Section 34 of the
Act of 1916 to be understood very
differently from the way it was in the day
of its enactment. The powers of the District
Magistrate must, therefore, be held limited
to Section 34 and not expanded in any
manner.

17. The question involved here fell
for consideration of a Division Bench of
2 All. Vimlesh Lal Vs. State of U.P. & Ors.
311
this Court sitting at Lucknow in President,
Nagar
Palika
Parishad,
Sultanpur,
Babita Jaiswal v. State of U.P., AIR
OnLine 2019 All 2407. In President,
Nagar
Palika
Parishad,
Sultanpur,
Babita Jaiswal (supra), it was held by
their Lordships of the Division Bench:

"24. From a bare reading of said
Section 34, it is clear that the District
Magistrate has power to interfere with only
such resolutions or orders of the Nagar
Palika Parishad if the same are likely to
cause or tend to cause 'obstruction,
annoyance or injury to the public......' or
'danger to human life, health or safety or a
riot or affray'. Awarding a contract in
favour of a person cannot be matter, which
may cause obstruction, annoyance or injury
to the public or danger to human life, health
or safety etc. Even directions to make
payment with regard to contract given by
the Nagar Palika Parishad or execution of
resolutions passed by the Nagar Palika
Parishad, which include cleaning of drains
and repairing of roads etc. also would not
fall in the category of cases enumerated
under Section 34 of the Act under which
the District Magistrate can invoke the
powers under Section 34 of the Act.

25. The Constitution of India as
well as the Uttar Pradesh Municipalities
Act, 1916 envisage that the Nagar Palika
Parishads are to work independently and
carry on the functions and duties, which it
is obliged in law to perform. Interference
by the District Magistrate or the State
Government would only be permissible if
the
circumstances
enumerated
under
Section 34 of the Act prevail.

26.
The
bye-laws
dated
24.09.1994, as annexed with the writ
petition as Annexure no.10, providing for
registration and execution of works was
published under Section 301 of the Act,
1916 inviting objections which is the
previous
publication
envisaged
under
Section 300 of the Act, 1916. In the counter
affidavit, it has been stated that the byelaws in question was never published in the
official gazette as required under Section
301 of the Act, 1916. This fact is not
correct. The
previous
publication
as
envisaged under the aforesaid provision has
been complied with and publication was
made in the official Gazette inviting
objections/suggestions from the general
public. The State has failed proved that
thereafter no final publication was made in
the Official Gazette under Section 301 (2)
of the Act, 1916.

27. In our considered opinion, the
power, which has been exercised by the
District Magistrate in the present case,
would not fall within the ambit of
provisions of Section 34 of the Act. The
members of the Nagar Palika Parishad are
duly elected and interference by the
executive would only be to the extent
permissible in law. Since we are of the
opinion that the orders passed by the
District Magistrate are outside the purview
of the provisions of Section 34 of the Act,
1916 and the learned Standing Counsel has
not placed any other provision of law under
which the District Magistrate could have
passed the said orders, which clearly
interfere with the functioning of the Nagar
Palika Parishad, the said orders would be
liable to be quashed."

18. The same view was expressed
earlier by a learned Single Judge of this
Court in Subodh Kumar Gupta and
others v. State of U.P. through Principal
Secretary and others, 2016 SCC OnLine
All
1358.
The
learned
Judge
was
considering the issue in the context of
orders passed by the District Magistrate,
Farrukhabad terminating the service of the
312 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioners there, who were Class-III and
IV employees of the Nagar Palika,
appointed after the Chairman's approval.
The appointments were terminated by the
District Magistrate purporting to exercise
powers under Section 34 of the Act of
1916. It was in the context of these facts,
that my esteemed Brother Mahesh Chandra
Tripathi held in Subodh Kumar Gupta
(supra):

"16. From a bare reading of
Section 34 of the Act, it is clear that the
District Magistrate has power to interfere
with only such resolutions or orders of the
Nagar Palika Parishad if the same are likely
to cause or tend to cause 'obstruction,
annoyance or injury to the public......' or
'danger to human life, health or safety or a
riot or affray'. Awarding a contract in
favour of a person cannot be matter, which
may cause obstruction, annoyance or injury
to the public or danger to human life, health
or safety etc. Even directions to make
payment with regard to contract given by
the Nagar Palika Parishad or execution of
resolutions passed by the Nagar Palika
Parishad, which include cleaning of drains
and repairing of roads etc. also would not
fall in the category of cases enumerated
under Section 34 of the Act under which
the District Magistrate can invoke the
powers under Section 34 of the Act. The
Constitution of India as well as the Act
envisage that the Nagar Palika Parishads
are to work independently and carry on the
functions and duties, which it is obliged in
law to perform. Interference by the District
Magistrate or the State Government would
only be permissible, if the circumstances
enumerated under Section 34 of the Act
prevail."

19. In Subodh Kumar Gupta, it has
further been remarked by His Lordship:

"17. Section 74 of the Act
provides that the President may appoint,
remove or otherwise punish a servant on
posts in the non-centralised services
carrying scale of payment equal to or
higher than the lowest scale of pay
admissible to the clerical staff. The
provision contained in the Act clearly
mandates that in absence of Executive
Officer, the Chairman will issue the
appointment officers. In the present matter,
the petitioners were appointed by the
Chairman of the Municipality, who is the
appointing authority under Section 74 of
the Act."

20. Cognizant of this position of the
law, the District Magistrate here, as said
earlier,
conceded
that
he
has
no
jurisdiction. But, as also said earlier, the
District Magistrate has resorted to a plea of
confession
and
avoidance.
He
has
acknowledged the lack of his jurisdiction,
but sought to avoid the folly of his action
by saying that he acted under a command
of this Court.

21. A reading of the order passed by
this Court in Writ-A No.4791 of 2023 does
not show that the District Magistrate was in
any manner commanded to act in
violation of the law. Rather, no opinion
was expressed by this Court. He was
just asked to decide the representation
made to him by respondent No.5,
questioning
the
petitioner's
appointment. The first issue that the
District
Magistrate
should
have
examined
was
if
he
at
all
had
jurisdiction to decide. If he had done
that, he would have acted in accordance
with law. The acknowledgment before
this Court that he has no jurisdiction
has made matters more complicated and
given
rise
to
avoidable
litigation.
2 All. The Secretary, I.C.A.R. Ministry of Agriculture and Farmers Welfare & Anr. Vs.
 Ravinder Kumar Tyagi
313

22. Apparently, the order passed by
the District Magistrate is absolutely without
jurisdiction and he could not have set aside
the
promotion
order
made
in
the
petitioner's favour by the Chairman of the
Nagar Palika Parishad in the exercise of his
power to appoint, promote etc. employees
of the Nagar Palika Parishad.

23. This Court is not inclined to go
into the validity of the petitioner's
promotion, as that is in no way under
challenge here. It would be open to the fifth
respondent to seek his remedies as advised.

24. In the result, this petition succeeds
and is allowed. The impugned order dated
24.05.2023
passed
by
the
District
Magistrate, Sonbhadra is hereby quashed.
There shall be no order as to costs.
----------
(2024) 2 ILRA 313
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.01.2024
BEFORE
THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE DONADI RAMESH, J.

Writ A No. 21298 of 2023

The
Secretary,
I.C.A.R.
Ministry
of
Agriculture and Farmers Welfare & Anr.
 ...Petitioners
Versus
Ravinder Kumar Tyagi ...Respondent

Counsel for the Petitioners:
Sri Narendra Pratap Singh

Counsel for the Respondents:

A. Service law - Constitution of India -
Article 14 - Writ - Maintainability -
Latches of 638 days - Petitioner, ICAR,
explained the delay saying that 'due to
long departmental procedure the matter
has been sent to ICAR head Quarter and
after concurrence of Head Quarter it has
been decided to challenge the matter' -
High Court found the explanation of
latches unsatisfactory - Bherulal's case
relied upon. (Para 4 and 8)

Writ petition dismissed. (E-1)

List of Cases Cited :-

1. Madhya Pradesh & ors.Vs Bherulal; 2020 (10)
SCC 654

2. St. of Madhya Pradesh & anr. Vs Chaitram
Maywade; 2020 (10) SCC 654

3. Majji Sannemma @ Sanyasirao Vs Reddy
Sridevi & ors.; 2021 SCC Online (SC) 1260

(Delivered by Hon'ble Vivek Kumar Birla,
J.
&
Hon'ble Donadi Ramesh, J.)

1. Heard Sri Narendra Pratap
Singh,
learned
counsel
for
the
petitioners.

2. Present petition has been filed
for quashing the impugned order dated
17.12.2021
passed
in
Original
Application No. 330/1069 of 2021
(Ravinder Kumar Tyagi vs. UOI and
others).

3. The Stamp Reporter has reported
latches of 638 days on the date of reporting
of the present petition on 15.12.2023.
Subsequently, present petition was filed on
18.12.2023.

4. On a pointed query learned counsel
for the petitioners submits that latches have
been explained in paragraph 15 of the
petition, therefore, delay in challenging the
impugned order dated 27.12.2021 is not
intentional and is liable to be quashed.