Nov - High Court of Judicature at Allahabad

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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."
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3 All] Kailash Babu Gupta V. State
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3 All] Anil Kumar Vashisth V. State
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3 All] Krishan Kumar V. State of U.
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Nov - High Court of Judicature at Allahabad

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