# Yadav v. Ram Briksh Yadav [2006(65)

- **Citation:** (2009) 3 ILRA 1071
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-10-15
- **Case number:** Civil Misc. Writ Petition No.7751 of 2009
- **Bench:** Sunil Ambwani, Ran Vijay Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yadav-v-ram-briksh-yadav-2006-65-41468
- **Pages:** 9

## Headnote

Sri Devendra Kumar
S.C.

U.P.
Nagar
Palika
Adhiniyam
1916Section 48 (2) (b) Removal of chairman
of Nagar Panchayat burden of Proof
wrongly
shifted
upon
petitioners-
allegations not fall within the meaning of
misconduct- No concern with the duty
discharged by petitioner-held- order of
removal- illegal

Held: Para 19

On the aforesaid discussion we find that
the State Government not only wrongly
placed the burden of proof of the
charges on the petitioner to be disproved
by him, but also failed to discuss the
evidence led by the petitioner. The
charge No.1 had no concern with the
misconduct and did not fall in any of the
grounds given in Section 48 (2) (b) and
that charge No.2 was wholly vague and
was not related to the duties performed
by the petitioner. The third and fourth
charge, were also not proved against the
petitioner.
Case law discussed:
2005(3) AWC 2818, 2000(3) ESC 1611(All),
2005(4) AWC 3563.

## Text

3 All] Matloob Gaur V.State of U.P. and another
1071
Inspector
of
Schools,
Kushinagar
[2006(3) ESC 1765 (All)] and Pujari
Yadav Vs. Ram Briksh Yadav [2006(65)
ALR 767] lay down the correct law in
contradistinction to the Division Bench
judgment of Principal, Rashtriya Inter
College,
Bali
Nichlaul,
District
Maharajganj And Others [(2000) 1
UPLBEC 707] and the other judgments to
that effect.

The reference is answered accordingly.

74. Let the papers be placed before
the learned Single Judges before whom
the writ petitions are pending to proceed
with the matter in the light of the answers
given by us in the present reference.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.10.2009

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE RAN VIJAY SINGH, J.

Civil Misc. Writ Petition No.7751 of 2009

Matloob Gaur

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

Counsel for the Petitioner:
Sri Kesari Nath Tripathi
Sri Suneet Kumar

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

U.P.
Nagar
Palika
Adhiniyam
1916Section 48 (2) (b) Removal of chairman
of Nagar Panchayat burden of Proof
wrongly
shifted
upon
petitioners-
allegations not fall within the meaning of
misconduct- No concern with the duty
discharged by petitioner-held- order of
removal- illegal

Held: Para 19

On the aforesaid discussion we find that
the State Government not only wrongly
placed the burden of proof of the
charges on the petitioner to be disproved
by him, but also failed to discuss the
evidence led by the petitioner. The
charge No.1 had no concern with the
misconduct and did not fall in any of the
grounds given in Section 48 (2) (b) and
that charge No.2 was wholly vague and
was not related to the duties performed
by the petitioner. The third and fourth
charge, were also not proved against the
petitioner.
Case law discussed:
2005(3) AWC 2818, 2000(3) ESC 1611(All),
2005(4) AWC 3563.

(Delivered by Hon'ble Sunil Ambwani, J.)

1. Heard Shri Kesari Nath Tripathi,
Senior Advocate assisted by Shri Suneet
Kumar, learned counsel for the petitioner.
Learned Standing Counsel appears for the
respondents. Shri Devendra Kumar has
entered caveat for the Administrator and
Executive Officer of the Nagar Panchayat,
Kithore, Distt. Meerut.

2. Shri Matloob Gaur, the petitioner
was elected as Chairman of Nagar
Panchayat, Kithore, Distt. Meerut in
November, 2006. A notice dated 5.2.2008
was
issued
to
him
by
the
State
Government on 5th February, 2008 and
was served upon him by the District
Magistrate, Meerut by his letter dated
8.2.2008 to show cause as to why he
should not be remove from the post of the
Chairman of the Nagar Panchayat under
Section 4 (2) (b) (ii), (iv), (ix), (x), (xi),
(xii) and (xvii) of the U.P. Municipalities
Act, 1916. The notice also contained an
1072 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
order by which the petitioner's financial
and administrative powers under the
proviso to Section 48 (2) of the U.P.
Nagar Palika Adhiniyam, 1916 were
ceased, and were directed to be exercised
by the District Magistrate, or an officer
nominated by the District Magistrate, who
shall not be Sub Divisional Magistrate to
exercise such powers until the petitioner
is exonerated of the charge. The District
Magistrate by his communication letter
dated
8.2.2008
directed
the
Sub
Divisional Officer, Mawana to exercise
the financial and administrative powers,
until the conclusion of the proceedings.

3. The show cause notice contained
four charges namely; (1) that the
petitioner had stated in his affidavit filed
along
with
nomination
paper
on
5.10.2006 that there was no case pending
against him in any Court. He did not
disclose the cases, which are pending
against him and thus concealed the facts;
(2) the log book dated 2.8.2007 of the
consumption of diesel was only with
regard to tractor. The tractor driver stated
that the diesel is filled directly at the
petrol pump and is not consumed
separately. No log book was maintained
for the period prior to the period 2.8.2007,
causing doubt over the consumption of
diesel; (3) the contract for parking place
for the year 2007-08 of Nagar Panchayat
Kithore, was settled by the petitioner in
favour of his brother Shri Maroof Ahmad.
Three persons namely Shri Maroof
Ahmad, Dilshad and Sher Mohammed
participated in the auction held on
30.5.2007, whereas the amended bylaws
were
published
in
the
gazette
on
14.7.2007. The petitioner violated the
conditions of Section 18 (b) (ii), which
prohibits the Chairman of the Nagar
Palika to give benefits to his family
members either directly or indirectly; and
(4) the plot No.908, 903, 935 are
registered as a pond and is not in the
possession of the Chairman of the Nagar
Panchayat, but plot No.702, which is
entered as 'khata kuria' (manure pits) has
been used to construct a house for which a
suit is pending in the civil court and that
Court directed the parties to maintain
status quo. In preliminary enquiry the
charge was found fully proved against the
Chairman.

4. The petitioner in his reply dated
20.2.2009 after referring to the documents
in his support denied the allegations and
submitted that no enquiry was made from
him nor any facts were placed before him.
He has not misused the property and
money of Nagar Panchayat in any
manner. With regard to allegations in
charge No.1 relating to concealment of
the cases at the time of filing nomination
does not come within the purview of
Section
48
of
the
Nagar
Palika
Adhiniyam, 1916. He has not been
convicted in any offence, and that in all
the cases in which the decisions were
made, the petitioner was either discharged
or acquitted. Regarding Charge No.2 the
petitioner stated that the consumption of
diesel relates to the tractor of Nagar
Panchayat. The log book of the period
prior to 2.8.2007 is available in the office
of Nagar Panchayat in which entreis have
been made by the tractor driver. The
petitioner has not used the diesel in any
other vehicle or for any other purpose.
The driver had stated that he directly fills
the diesel in the tractor. The petitioner is
not responsible for maintenance of the log
book of the tractor. On charge No.3 the
petitioner alleged that Shri Maroof
Ahmad is a contractor of collecting
parking fees from 1.4.2006, much before
3 All] Matloob Gaur V.State of U.P. and another
1073
the petitioner was elected as Chairman. At
that time Shri Shams Parvez was the
Chairman. There are no dues pending on
Shri Maroof and that Nagar Panchayat has
not sufferred any loss. The petitioner's
brother
Maroof
Ahamd
is
living
separately from the petitioner and has
ration card in his own name. The
petitioner has no concern with his
business. The contract of parking fees has
been given in accordance with the rules
and that the contract settled after due
execution vide publication in Amar Ujala
and
Punjab
Kesari
newspapers
on
17.5.2007, 23.5.2007 and 29.5.2007 was
approved by the Board. The Munadi was
also made in Nagar Kithore area on
16.5.2007 and 21.5.2007 before auction
was held on 30.5.2007. Shri Maroof was
the highest bidder and as old contractor
with no complaint against him, his highest
bid was accepted and approved by the
Board.

5. On the last charge the petitioner
stated in his reply that Khasra No.702 is
situated in Mohalla Mausam Khani,
Nagar Panchayt Kithore, whereas the
petitioner's house is situate in Mohalla
Badbaliyan Nagar Panchayat Kithore.
There is no dispute or suit pending in any
Court relating to Plot No.702 and that
charge is entirely false and baseless. He
further submitted that the enquiry report
has been prepared on the pressure
exercised by Shri Munkad Ali, member of
Rajya Sabha/ leader of Bahujan Samaj
Party. Shri Munkad Ali has illegally
occupied Nagar Panchayat land. The
petitioner has initiated proceedings for his
eviction from Khasra No.632 Kabristan
and 633 Rasta belonging to Nagar
Panchayat and had also made complaint
to the Sub Divisional Magistrate, Mawana
on 24.9.2007 and 26.9.2007. A writ
petition No.42015 of 2007 filed by the
petitioner impleading Shri Munkad Ali as
respondent is pending. The petitioner had
defeated Shri Majid Ali, the brother of
Munkad Ali in the elections giving rise to
the complaint against him. Khasra No.702
is old abadi on which house of Farooq,
Mashroor, Hazi Aarif, Shahid Manzoor
and Shamshad have been constructed.

6. It is alleged that the Principal
Secretary, Nagar Vikas Anubhag No.1
fixed
27.8.2008
for
hearing.
The
intimation of the date was received by the
petitioner on 23.8.2008. On the date fixed
no document was shown to the petitioner.
The petitioner was required to submit his
reply either orally or in writing. Since no
further documents were relied upon, the
petitioner stated that he has already given
his reply in writing. The petitioner,
thereafter, waited for a decision to be
taken by the State Government. By an
order dated 14.11.2008 giving rise to this
writ petition the petitioner has been
removed from the office of the Chairman
of Nagar Panchayat, Kithore giving rise to
this writ petition.

7. Shri Keshari Nath Tripathi,
learned counsel for the petitioner submits
that the powers under Section 48 to
remove the elected Chairman of the Nagar
Panchayat should be sparingly exercised
by the State Government. These powers
cannot be compared with the powers of
misconduct of a government servant. An
elected Chairman can be removed on the
grounds given in Section 48 (2) (b) of the
U.P. Municipalities Act, 1916 but that the
charge should be serious enough to
initiate the action and to exercise the
powers of removal. In the present case the
first charge relating to the cases pending
against the petitioner at the time of filing
1074 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
of the nomination and the failure to
disclose the pendency of the case can not
be
a
ground
of
removal
as
the
disqualification under Section 12 (D) and
Section 43 (AA) of the Act, may be
incurred after the petitioner is elected.
The State Government did not disclose
the pendency of any case against the
petitioner by giving the details and that
the impugned order also does not give
reference to the pendency of any case
against the petitioner on the day, when he
contested the election. The charge is not
only vague but is also non existing and
does not fall in any of the conditions of
exercise of powers under Section 48 (1)
(b) of the Act.

8. With regard to second charge
relating to the consumption of diesel, it is
submitted that the petitioner as Chairman
of the Nagar Panchayat was not directly
concerned with the consumption of diesel
and the supervision of the log book. The
charge does not give the details of the
consumption of the diesel and the alleged
discrepancy in the log book. The
allegation that the log book dated
2.8.2007 only relates to the diesel
consumed by the tractor, and that log
book prior to 2.8.2007 was not maintained
was entirely vague and did not allege or
establish any misconduct against the
petitioner. The petitioner had clearly
stated that the maintenance of log book is
a matter to be looked after by the
Executive Officer and that log book of the
period prior to 2.8.2007 is available. The
Executive
Officer,
incharge
for
maintaining log book may not have
produced the same before the enquiry
officer but that by itself could not be a
ground to make an enquiry unless it was
shown that the diesel was misused.

9. On the third charge the State
Government has illegally and arbitrarily
accepted the report of the District
Magistrate that the proceedings of auction
held on 30.5.2007 should have awaited
the selection of the parking place in
accordance with the amended bylaws
published on 14.7.2007, and that the
petitioner has not given any reply or
evidence to disprove the fact. The
Chairman has given direct benefit of
contract to his brother in violation of
Section 48 (b) (2) of the Act and has thus
committed an act, which makes him liable
to be removed from the office. It is
submitted by Shri K.N. Tripathi that
Section 48 (2) (b) (ii) relates to knowingly
acquire or continued to have, directly or
indirectly or by a partner, any share or
interest, whether pecuniary or of any
other
nature,
in
any
contract
or
employment with by or on behalf of the
Municipality or (iii) knowingly acted as
President or as a member in a matter other
than a matter referred to in clauses (a) to
(g) of sub-section (2) of Section 32, in
which he has, directly or indirectly, or by
a partner, any share or interest whether
pecuniary or of any other nature, or in
which he was professionally interested on
behalf of a client, principal or other
person. There are no allegation that the
petitioner has any pecuniary interest in the
contract awarded to his brother, who was
working as a contractor of the Nagar
Panchayat from before the election of the
petitioner as Chairman. The allegations
that the petitioner had approved the
contract before the matter could be
considered by the Board is entirely
incorrect as the petitioner as Chairman of
the Nagar Panchayat did not approve the
contract. The proceeding of the auction
and the highest bid was approved by the
3 All] Matloob Gaur V.State of U.P. and another
1075
Executive Officer and was approved by
the Board.

10. With regard to findings on the
last allegations Shri Kesari Nath Tripathi
submits that the report of the District
Magistrate
accepted
by
the
State
Government was entirely vague and did
not give the details either of the
construction of the house or the pendency
of the case. The petitioner had clearly
stated in his reply that his house was not
constructed at Plot No.702 Mohalla Khani
but was situated in Mohalla Badbalian
and that infact the house of Farooq,
Mashroor and others were constructed on
the Khasra No.702 recorded as purani
abadi. The State Government without
considering the petitioner's reply has
mechanically believed the report of the
District Magistrate in exercising the
extreme powers of removal of elected
Chairman of the Nagar Panchayat.

11. Shri Kesari Nath Tripathi has
relied upon the judgments in Munna Lal
Gupta Vs. State of U.P. & Ors., 2005
(3) AWC 2818; Nasimuddin Vs. State
of U.P. & Ors., 2000 (3) ESC 1611 (All.)
and Smt. Kesari Devi Vs. State of U.P.
& Ors., 2005 (4) AWC 3563 in support
of his submission that the burden of
proving of charges is upon the State
Government. It cannot be shifted on the
petitioner. An elected Chairman of the
Nagar Panchayat cannot be removed only
on the ground that he could not defend
himself of the charges, which were
entirely vague and were not supported by
any material in proof of the allegations by
the District Magistrate. In Nasimuddin
Vs. State of U.P. (Supra) the Court relied
upon Israt Ali Khan Vs. State of U.P. in
finding that the State Government did not
hold enqiry in a quasi judicial manner and
found the charges to be proved without
discussing the evidence on its merits. In
Smt. Kesari Devi (Supra) this Court held
that
in
removing
the
elected
representative the State Government must
record specific finding of misconduct on
the charges after considering the material
placed by such elected representative.

12. Learned Standing Counsel on
the other hand submits that the charges
were fully proved. The petitioner had
misused his office. He was facing several
criminal cases at the time, when he
contested the elections and that charge of
misuse of diesel in failing to maintain the
log book properly and allowing his
brother to be awarded the contract for
parking place was sufficient to remove the
petitioner. Further the petitioner had
occupied public utility land in Khasra
No.702 for constructing his house. The
State
Government
considered
the
preliminary enqiry report and the reply
submitted by the petitioner in taking
action against him. The Writ Petition
No.8761 of 2008, Matloob Gaur Vs. State
of U.P. against notice dated 5.2.2008 was
dismissed by the High Court on 7.5.2008.
He
was
given
full
and
adequate
opportunity to defend himself both by
filing a reply in writing and to appear and
making oral submissions. The preliminary
enquiry report was found established
against the petitioner. The complaint
made by Hazi Rais Ahmad and Smt.
Naeem, Nagar Panchayat Kithore were
supported by the affidavits verified by
them and that Regional Naib Tehsildar
had caused an enquiry and found the
allegations to be proved. There is no
illegality in the order of the State
Government to cause interference in the
matter.
1076 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
13. A Nagar Panchayat under
Art.243 (Q) of the Constitution of India is
a local body of a transitional area, in
transition from a rural area to an urban
area to which the elections are held in
accordance with the procedure prescribed
in the U.P. Municipalities Act, 1916. The
Chairman is elected directly and that his
term is coterminous with the term of the
Nagar Panchayt. He may resign in writing
to the State Government and can be
removed, under Section 48, where the
State Government has at any time reason
to believe that (a) there has been a failure
on the part of the President in performing
his duties or that he is under clause (b)
incurred any of the disqualification or
conducted himself in a manner provided
in the fifteen clauses of Clause (b) of subsection (2) of Section 48. The proceedings
for removal must serve the principle of
nature justice and that decision must show
that the authority had applied its mind to
the allegations made, the explanation
furnished and the material produced by
the elected representative.

14. The elected public representative
of local body is accountable to his
electorate. His removal by the State
Government has serious consequence as
the people, who had elected him, loose
their voice to be represented by him. The
power of judicial review, in such matters
is limited but has to be exercised with
caution. An elected representative should
ordinarily be allowed to complete his term
for which he is elected. If the State
Government wants to curtail the term on
any of the ground given in Section 48 (2)
(b) of the Act, there must be a complaint
on which a preliminary enquiry is made,
and that material collected during the
enquiry must be put to the elected
representative in the form of specific
charge. The burden of proving such
charges is upon the complainant. The
charges must be specific and must contain
all the details to submit effective reply.
The findings must not only be based on
material but should also relate to the
grounds given in detail in Section 48 (2)
(b) of the Act. The State Government
must consider and after enquiries serving
the principles of natural justice find with
reasons to be recorded in writing that the
allegations are sufficiently serious to
remove him from the elected office. The
proviso to sub-section (2) (A) provides
that where the State Government has
issued notice in respect of any of the
grounds in clause (a) or sub-clause (ii),
(iii), (iv), (vi), (vii) and (viii) of Clause
(b) and sub-section (2), it may instead of
removing him, given him a warning.

15. In the present case the charge
No.1 against the petitioner did not fall in
any of the clauses for removing the
Chairman under Section 48 (2) of the Act.
The disclosure of the pendency of the
case, at the time of contesting the
elections
is
a
matter
of
incurring
disqualification
for
contesting
the
elections with an object to inform the
electorate as well as to verify whether the
person is qualified to contest the election
of the President. Such a charge will not
fall within the meaning of the ground in
Section 48 (2) (b) (i), which provides for
incurring any disqualification mentioned
in Section 12-D and 43 (aa) of the Act.
Section 12-D of the Act provides for
disqualification for registration in an
electoral roll, such as the person is not a
citizen of India or is of unsound mind,
and so declared by the competent court or
is for the time being disqualified from
voting under the provisions of any law
relating to corrupt practice and other
3 All] Matloob Gaur V.State of U.P. and another
1077
offences in connection with elections. In
such case his name has to be struck of the
electoral roll. Section 43 AA provides for
disqualification for a Presidentship and
which includes the disqualification such
as the person is not the elector for any
ward or has not attained the age of 30
years on the date of his nomination. A
person is also disqualified under subsection (2) for being chosen and for being
President of the municipality, if he is or
has become subject to any disqualification
mentioned in clauses (a) to (g) and for (i)
to (k) of Section 13D. The failure to
disclose the pendency of case is not a
ground of disqualification unless such
case has resulted into the disqualification
for contesting the elections such as
conviction for any offence punishable
with imprisonment under Section 171 (E)
or under Section 17 (F) of the IPC, 1860
in Section 13D (h) (ii) or sentence to
imprisonment for contravention of any of
the
order
under
the
Essential
Commodities Act etc. or for an offence,
which
is
declared
by
the
State
Government to involve such moral
turpitude as to render him unfit to be a
member etc. given in Section 13-D (h) (j)
provided
that
in
case
of
(j)
the
disqualification shall cease on the expiry
of five years.

16. The disqualification of a person
to be elected as a member under Section
12-D and the disqualification to contest as
a President under Section 43-AA can be a
ground to file and declare the election of
the President to be invalid but that these
grounds cannot be the subject matter of
complaint and enquiry by the State
Government in removing a President
under Section 48 of the Act.

17. The second charge related to the
negligence in maintaining the log book of
the use of diesel in the tractor of the
Nagar Panchayat. The charge only related
to the maintenance of log book, which is
the job of the driver and has to be
supervised under Section 60 of the Act by
the Executive Officer. The Act does not
provide for supervision of maintenance of
log book and consumption of diesel to be
made by the Chairman of the Nagar
Panchayat. The State Government neither
charged nor alleged any misuse of the
diesel, purchased by the Nagar Panchayat,
by the petitioner. The charge, therefore,
did not relate to the petitioner and any
case did not prove any misuse of the
property
and
assets
of
the
Nagar
Panchayat. In respect of third charge the
State Government has found substance in
the report of the District Magistrate that
the auction took place on 30.5.2007,
whereas
the
amended
bylaws
for
identifying
the
parking
place
were
published
on
14.7.2007
and
that
Chairman has not given any reply or
evidence in this regard. The Chairman is
not permitted to give any contract either
directly or indirectly and that he had
approved the contract before it was placed
before the Board. The State Government
did not consider the petitioner's reply that
the brother of the petitioner was already
working as a contractor of the Nagar
Panchayat prior to his election. He was
living separately and that notification of
the bylaws, was subsequent to the auction
held after giving due publicity in which
three persons had participated. There was
no finding that the petitioner had obtained
any financial gain or that he had given
any favour to his brother. The burden of
proving was also wrongly shifted upon
the petitioner. No one had challenged
settlement of the contract or that the offer
1078 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
was inadequate. There was no allegation
of any direct or indirect benefit accrued to
the petitioner in respect of award of the
contract to his brother. There are no
findings on the reply given by the
petitioner that his brother is living
separately and has a separate ration card
in his name and that the petitioner had no
concern with him.

18. With regard to the last charge,
once again the State Government wrongly
placed the burden on the petitioner. There
is no finding that the petitioner's house is
constructed on the Khasra No.702. On the
contrary the finding is that the Chairman
could not prove by any evidence in his
reply that his house is not constructed at
Khasra No.702 and that no case is
pending in respect of his house on Khasra
No.702 in any civil court or any revenue
court filed either by the petitioner or his
father. The State Government has not
given clear finding with regard to
construction of the house of the petitioner
on public utility land and has not
considered the petitioner's reply that his
house is not constructed on Khasra
NO.702 but is actually constructed in
Mohalla Badbaliyan. Further there was no
finding on the reply given by the
petitioner that the house of Farooq,
Mashroor and others are constructed on
Khasra No.702.

19. On the aforesaid discussion we
find that the State Government not only
wrongly placed the burden of proof of the
charges on the petitioner to be disproved
by him, but also failed to discuss the
evidence led by the petitioner. The charge
No.1 had no concern with the misconduct
and did not fall in any of the grounds
given in Section 48 (2) (b) and that charge
No.2 was wholly vague and was not
related to the duties performed by the
petitioner. The third and fourth charge,
were
also
not
proved
against
the
petitioner.

20. Since we have found that four
charges levelled against the petitioner
were not proved, we are not going into
allegations
of
malafide.
We
may,
however, observe that in order to remove
an elected Chairman of Nagar Panchayat,
the State Government must have a good
case, falling within the grounds given in
Section 48 of the Act and on which the
explanation of the person is not sufficient.
The charges, even if proved, may not
always result in a decision of removing
him
from
the
office.
The
State
Government may exceed unless the
charges are very serious giving him a
warning in as much as a President
removed under sub-section (2-A) shall
also cease to be a member of the Nagar
Panchayat and in case of his removal of
any of the ground mentioned in Clause (a)
or sub-clauses (vi), (vii) or (viii) of clause
(b) of sub-section (2) is not eligible under
sub-section (4) for reelection as President
or member for a period of five years from
the date of his removal. This penalty
clause put the State Government under a
duty to remove a President only if the
charges are serious and that in the opinion
of the State Government the person does
not deserve to continue in the office as the
Chairman of Nagar Panchayat. Each case,
however, will depend upon its own facts.

21. The writ petition is allowed. The
order of the State Government dated 14th
November, 2008 removing the petitioner
from the office of the Chairman of Nagar
Panchayat, Kithore, Distt. Meerut is set
aside. The petitioner shall be allowed to
resume the charge, if the charge of the
3 All] Ashutosh Kumar Tripathi V.State of U.P. and others
1079
Chairman, Nagar Panchayat has been
taken away from him.
----------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.08.2009

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

Civil Misc. Writ Petition No. 40476 of 2009

Ashutosh Kumar Tripathi
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Bhanu Prakash Singh
Sri Avinash Chandra Srivastava

Counsel for the Respondents:
Sri Amit Sthalekar
S.C.

U.P. Services (Reservation of Physically
Handicapped, Dependent of Freedom
fighter and Ex-Serviceman, Amendment
Act-1997-Claim of 2% reservation of
1556 post- can be done only by the state
govt. with consultation of High Court-
Question of reservation not approved by
full bench- no such direction can be
issued-petition dismissed.

Held: Para 3

We have also gone through the Full
Bench judgement of our High Court
reported in 2005 (4) ESC 2378 (All)
Sarika Vs. State of U.P. and others where
also it has been held that the reservation
will be made, if required, for the judicial
service by the State Government, then it
should be made in consultation with the
High Court. Therefore, when such Full
Court of this High Court did not approve
any such proposal for reservation, we
are of view that the prayer of the
petitioner cannot be considered and as
such
writ
petition
is
liable
to
be
dismissed and is accordingly dismissed,
however, without imposing any cost.
Case law discussed
2000 (IV) SCC 640, 2005 (4) ESC 2378 (All).

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

1. This writ petition has been made
to obtain an appropriate direction upon
the Registrar General of this High Court
to keep 2% of the posts in direct
recruitment to U.P.H.J.S.- 09 reserved for
the candidates of dependent of freedom
fighters. The learned counsel has relied
upon U.P. Public Services (Reservation of
Physically Handicapped, Dependence of
Freedom Fighters and Ex-servicemen)
(Amendment) Act 1997. He said that by
way of amendment in Section 3 (1) there
shall be reservation at the stage of direct
recruitment in public services i.e. two per
cent of vacancies for dependents of
freedom fighters and one per cent of
vacancies for ex-servicemen.

2. However, we have considered the
Constitution Bench judgement of the
Supreme Court reported in 2000 (IV)
SCC 640 State of Bihar and another Vs.
Bal Mukund Sah and others which
speaks as follows:-

"Any scheme of reservation foisted
on the High Court without consultation
with it directly results in truncating the
High Court's power of playing a vital role
in the recruitment of eligible candidates
to fill up these vacancies and hence such
appointments on reserved posts would
remain totally ultra vires the scheme of
the Constitution enacted for that purpose
by the Founding Fathers."