# Ajai Kumar Singh v. State Public Services Tribunal, Lko. & Ors

- **Citation:** (2023) 9 ILRA 385
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-24
- **Case number:** Writ-A No. 8329 of 2019
- **Bench:** Rajan Roy, Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajai-kumar-singh-v-state-public-services-tribunal-lko-ors-50802
- **Pages:** 7

## Headnote

A. Service Law - UP Government
Servant
(Discipline
and
Appeal)
Rules, 1999 - Rule 11 - Censure
entry - Statutory appeal was filed
beyond
period
of
90
days
as
prescribed under R. 11 - No provision
of condonation of delay to file appeal
- Effect - Appeal was summarily
rejected - Validity challenged - Held,
Appellate authority rightly rejected
the appeal summarily being barred by
limitation
because
the
Appellate
Authority u/R 11 has no power to
condone the delay. (Para 21)
386 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Service Law - UP Public Service
(Tribunal) Act, 1976 - Sections 4, 5 & 6 -
UP Government Servant (Discipline and
Appeal) Rules, 1999 - Rule 11 - Censure
entry
-
Claim
petition
against
the
punishment was filed before Tribunal -
Limitation of one years is prescribed -
Before it,
the
statutory
appeal
was
summarily rejected for being barred by
limitation u/R 11 - Computation of
limitation - Held, it was a case where the
appeal was not filed within the limitation
prescribed under Rule 11 thus it was not
in accordance with Rules, consequently,
the period of pendency of appeal would
neither stop nor extend the limitation and
it
will
not
be
excluded
from
such
computation and limitation will have to be
calculated
from
the
date
of
the
punishment order i.e. 20.03.2015 - Held
further, the claim petition filed in the year
2017 was clearly barred by limitation
which was one year from 20.03.2015.
[Para 22 (iv) and 23]

Writ petition dismissed. (E-1)

## Text

9 All. Ajai Kumar Singh Vs. State Public Services Tribunal, Lko. & Ors.
385

17. Having heard the learned counsel
for the petitioners and learned Standing
Counsel, Sri Ankur Tandon, the Court is of
the view that at the time when the
inspection was done, the petitioners ought
to have been informed and if the petitioners
were not available then the inspection
ought to have been done in the presence of
two independent witnesses. Further, we
conclude that the petitioners would also be
benefited by the Government Order dated
24.12.2012. Though it applies vis-a-vis
bricklin owners but we are of the view that
when the intention of the government was
to see that charge for digging of soil had to
be imposed if the digging was more than
two meters deep then definitely the
petitioners would be given the benefit of
Government
Order
dated
24.12.2012.
Never mind if they were farmers.

18. We find that the petitioners get
support from this Government Order as the
petitioners definitely had not dug below
two meters.

19. We also find that the case of the
petitioners is covered by the law as has
been laid down in the case of Ramvir
Singh (supra). The petitioners at the time
of the inspection were not informed about
the same and also the petitioners had not
dug anything below two meters. The writ
petition thus deserves to be allowed.

20. Facts culled out from the
pleadings are that the petitioner being a
poor
farmer
has
been
unnecessarily
harassed and the action to hold the
petitioners
guilty
of
doing
unlawful
excavation is arbitrary and unwarranted.

21. Having regard to the facts and
circumstances of the case, the order dated
20.5.2017 passed by District Magistrate,
Shamli (respondent no. 3), the orders dated
5.10.2017,
18.12.2017
passed
by
Commissioner,
Saharanpur
Division,
Saharanpur (respondent no. 2) and the
order dated 11.12.2018 passed by Special
Secretary, Mines and Minerals, Lucknow
(respondent no. 1) are quashed and are set
aside.

22. For the reasons aforestated, the
writ petition is allowed.
----------
(2023) 9 ILRA 385
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.08.2023

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE SAURABH LAVANIA, J.

Writ-A No. 8329 of 2019

Ajai Kumar Singh ...Petitioner
Versus
State Public Services Tribunal, Lko. & Ors.
 ...Respondents

Counsel for the Petitioner:
Rama Kant Dixit, Anand Mani Tripathi, Rekha
Srivastava

Counsel for the Respondents:
C.S.C.

A. Service Law - UP Government
Servant
(Discipline
and
Appeal)
Rules, 1999 - Rule 11 - Censure
entry - Statutory appeal was filed
beyond
period
of
90
days
as
prescribed under R. 11 - No provision
of condonation of delay to file appeal
- Effect - Appeal was summarily
rejected - Validity challenged - Held,
Appellate authority rightly rejected
the appeal summarily being barred by
limitation
because
the
Appellate
Authority u/R 11 has no power to
condone the delay. (Para 21)
386 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Service Law - UP Public Service
(Tribunal) Act, 1976 - Sections 4, 5 & 6 -
UP Government Servant (Discipline and
Appeal) Rules, 1999 - Rule 11 - Censure
entry
-
Claim
petition
against
the
punishment was filed before Tribunal -
Limitation of one years is prescribed -
Before it,
the
statutory
appeal
was
summarily rejected for being barred by
limitation u/R 11 - Computation of
limitation - Held, it was a case where the
appeal was not filed within the limitation
prescribed under Rule 11 thus it was not
in accordance with Rules, consequently,
the period of pendency of appeal would
neither stop nor extend the limitation and
it
will
not
be
excluded
from
such
computation and limitation will have to be
calculated
from
the
date
of
the
punishment order i.e. 20.03.2015 - Held
further, the claim petition filed in the year
2017 was clearly barred by limitation
which was one year from 20.03.2015.
[Para 22 (iv) and 23]

Writ petition dismissed. (E-1)

(Delivered by Hon'ble Rajan Roy, J. &
Hon'ble Saurabh Lavania, J.)

(C.M.Application No.54552 of 2019)

1. Heard.

2. Present review application has been
filed by review-applicant under Rule 12,
Chapter V of Allahabad High Court Rules,
1952 read with Section 114/151 of C.P.C.
in regard to judgment and order dated
28.03.2019, whereby this Court dismissed
the petition challenging the order dated
27.02.2019 passed by the U.P. State Public
Services
Tribunal,
U.P,
Lucknow,
(hereinafter
referred
to
"Tribunal"),
constituted under U.P. Public Service
(Tribunal) Act, 1976 (hereinafter referred to
"Act of 1976").

3. The submission of learned counsel
for the review-applicant is that from the
date of order dated 25.01.2017 passed by
the Appellate authority on an appeal filed
by the petitioner-applicant under Rule 11 of
U.P. Government Servant (Discipline and
Appeal) Rules, 1999 (hereinafter referred
to "Rules of 1999") challenging the order
of punishment dated 20.03.2015, the claim
petition was within time, as such, it ought
to have been decided on merits and the
order of Tribunal dated 27.02.2019 was
liable to be interfered with by this Court
but this Court dismissed the writ petition,
as such, the instant review application is
liable to be allowed.

4. In support of his contentions, Sri
Tripathi has placed before this Court the
relevant provisions of Rules of 1999 and
the Act of 1976 including Rule 11 of the
Rules of 1999 and Sections 4, 5 and 6 of
the Act of 1976. Except this, nothing has
been argued.

5. By the order dated 27.02.2019,
Tribunal dismissed the petition finding it to
be barred by limitation under Section 5 of
the Act of 1976.

6. Considered the submissions made
by the learned counsel for the reviewapplicant and perused the record.

7. Brief facts, which are required for
final disposal of present review application
are
that
admittedly,
disciplinary
proceedings were initiated against the
review-applicant in terms of the Rules of
1999 and the procedure, which was adopted
in the disciplinary proceedings, as appears
from the record, was as provided under
Rule 7 of the Rules of 1999.
9 All. Ajai Kumar Singh Vs. State Public Services Tribunal, Lko. & Ors.
387

8. By the punishment order dated
20.03.2015, review-applicant was awarded
censure entry and his integrity was
doubted. Being aggrieved, he preferred an
appeal dated 11.04.2016, which was
rejected being barred by limitation vide
order dated 25.01.2017.

9. Present matter revolves around the
Rules of 1999 particularly Rule 11 and
Section(s) 4, 5 and 6 of the Act of 1976, as
the counsel for the review-applicant did not
place any other Act or Rules before this
Court in support of his case.

10. It would be apt to refer here that
Rule 11 of the Rules of 1999 provides
remedy of appeal, which being relevant on
reproduction reads as under:-

"11. Appeal.-(1) Except the orders
passed under these rules by the Governor,
the Government servant shall be entitled to
appeal to the next higher authority from an
order passed by the Disciplinary Authority.

(2) The appeal shall be addressed and
submitted to the Appellate Authority. A
Government servant shall preferring to an
appeal shall do so in his own name. The
appeal
shall
contain
all
maternal
statements and argument relied upon by the
appellant.

(3) The appeal shall not contain any
intemperate language. Any appeal, which
contains such language may be liable to be
summarily dismissed.

(4) The appeal shall be preferred
within
90
days
from
the
date
of
communication of impugned order. An
appeal preferred after the said period shall
be dismissed summarily."

11. A perusal of Sub-Rule 4 of Rule
11 of the Rules of 1999 shows that the
appeal should be preferred within a period
of 90 days' from the date of communication
of an order and it further, shows that the
appeal preferred after the said period shall
be dismissed summarily. The power to
condone the delay in filing the appeal to the
Appellate authority has not been indicated
in the Rule, quoted above. On the other
hand, it provides that an appeal preferred
after the prescribed period of limitation
shall be dismissed summarily. Moreover,
no provision has been brought to the notice
of this Court under which the Appellate
authority has power to condone the delay in
preferring the appeal.

12. Section 5 of the Act of 1976 was
taken note of by this Court while passing
the judgment dated 28.03.2019, under
review. The said part of judgment, under
review, reads as under:-

""Section 5 (1) (b) of the U.P. Public
Services (Tribunal) Act, 1976 provides the
period of limitation for filing a claim
petition before the Tribunal, which reads as
under:

"(1) (b). The provisions of the
Limitation Act, 1963 (Act 36 of 1963) shall
mutatis mutandis apply to reference under
Section 4 as if a reference were a suit filed
in civil court so, however, that --

(i) notwithstanding the period of
limitation prescribed in the Schedule to the
said. Act, the period of limitation for such
reference shall be one year;

(ii) in computing the period of
limitation, the period beginning with the
date on which the public servant makes a
representation
or prefers
an
appeal,
revision or any other petition (not being a
memorial to the Governor) in accordance
with the rules or orders regulating his
conditions of service, and ending with the
date on which such public servant has
knowledge of the final order passed on such
388 INDIAN LAW REPORTS ALLAHABAD SERIES
representation, appeal, revision or petition,
as the case may be, shall be excluded."

In the case of Karan Kumar Yadav Vs.
U.P. State Public Services Tribunal and
others reported in 2008 (2) AWC 1987 All,
it has been held by the Division Bench of
this
Court
that
the
application
for
condonation of delay in filing a claim
petition would not be maintainable nor
entertainable. Relevant portion of the it is
reproduced below:

"Section 5(1)(b) aforesaid lays down
the applicability of Limitation Act and
confines it to the reference under Section 4
of the Act, 1976 as if a reference was a suit
filed in the Civil Court . This leaves no
doubt that a claim petition is just like a suit
filed in the Civil Court and in the suit the
period of limitation cannot be extended by
applying the provisions of Section 5 of the
Limitation Act. Sub clause (i) of Section 5
of the Tribunal's Act, specifically provide
limitation for filing the claim petition i.e.
one year and in sub clause (ii) the manner
in which the period of limitation is to be
computed has also been provided.

Section 5 of the Limitation Act reads
as under:-

Extension of prescribed period in
certain cases. -- Any appeal or any
application, other than an appliation under
any of the provisions of Order XXI of the
Code of Civil Procedure 1908 ( 5 of 1908),
may be admitted after the prescribed
period, if the appellant or the applicant
satisfies the court that he had sufficient
case for not preferring the appeal or
making the application within such period.

Explanation:-
The
fact
that
the
appellant or the applicant was misled by
any order, practice or judgement of the
High Court in ascertaining or computing
the prescribed period may be sufficient
cause within the meaning of this Section.

Its applicability is limited only to
application/appeals and revision. It hardly
requires any argument that section 5 does
not apply to original suit, consequently it
would not apply in the claim petition. Had
the legislature intended to provide any
extended period of limitation in filing the
claim petition, it would not have described
the claim petition as a suit filed in the Civil
Court under section 5(1)(b) and/or it would
have made a provision in the Act giving
power to the Tribunal, to condone delay,
with respect to the claim petition also.

In view of the aforesaid provision of
the Act and the legal provision in respect to
the applicability of Section 5 of the Act, it
can safely be held that the application for
condonation of delay in filing a claim
petition would not be maintainable nor
entertainable.""

13. Section 5(1)(b)(ii), which form
part of above quoted portion of the
judgment dated 28.03.2019, says that for
computing the period of limitation provided
under the Act of 1976 challenging the
order(s) of punishment passed in the
disciplinary proceedings, which is 'one
year', the period beginning with the date on
which
the
public
servant
makes
a
representation or prefers an appeal, revision
or any other petition (not being a memorial
to the Governor), in accordance with the
rules or orders regulating his conditions of
service, and ending with the date on which
such public servant has knowledge of the
final order passed on such representation,
appeal, revision or petition, as the case may
be, shall be excluded.

14. The expression "in accordance
with
rules
or
orders
regulating
his
conditions of service" in the context of
present case is relevant. In view of this
expression, a representation/appeal/revision
9 All. Ajai Kumar Singh Vs. State Public Services Tribunal, Lko. & Ors.
389
or any other petition for the purposes of
seeking benefit of Section 5(1)(b)(ii) ought
to have been filed strictly in terms of Rules
or Orders, as the case may be, applicable,
which in the instant case are the Rules of
1999.

15. To the view of this Court, Subsection(s) 5 and 6 of Section 4 of the Act of
1976 are also relevant and being so the
same are extracted hereinunder:-

"(5) The Tribunal shall not ordinarily
admit a reference unless it is satisfied that
the public servant has availed of all the
remedies available to him under the
relevant service rules, regulations or
contract as to redressal of grievances.

(6) For the purpose of sub-section (5)
a public servant shall be deemed to have
availed of all the remedies available to him
if a final order has been made by ths State
Government, an authority or officer thereof
or other person competent to pass such
order under such rules or regulations or
contract rejecting any appeal preferred or
representation made by such public servant
in connection with the grievance:

Provided that where no final order is
made by the State Government, authority
officer or other person competent to pass
such order with regard to the appeal
preferred or representation made by such
public servant within six months from the
date on which such appeal was preferred or
representation was made, the public
servant may, by a written notice by
registered post, require such competent
authority to pass the order and if the order
is not passed within one month of the
service of such notice, the public servant
shall be deemed to have availed of all the
remedies available to him."

16. Sub-section 6 of Section 4 of the
Act of 1976 provides that where no final
order is made by the State Government,
authority, officer or other person competent
to pass such order with regard to the appeal
preferred or representation made by such
pubic servant within six months from the
date on which such appeal was preferred or
representation was made, the public servant
may, by a written notice by registered post,
require such competent authority to pass
the order and if the order is not passed
within one month of the service of such
notice, the public servant shall be deemed
to have availed of all the remedies available
to him.

17. Thus, if the appeal is not decided
in terms of Sub-section 6 of Section 4 of
the Act of 1976 challenging the order of
punishment then the concerned public
Servant
can
approach
the
Tribunal
challenging the punishment 'order' passed
by Disciplinary Authority regarding which
an appeal was filed, which in the instant
case was not filed strictly as per Rule 11.

18. From a conjoint reading of
Section 4 and 5 and Sub-section(s) 5 & 6 of
Section 4, it appears that an order of
punishment
passed
by
Disciplinary
Authority can be challenged directly before
the Tribunal, if statutory appeal or
representation filed within time is not
decided within a period of six months.
However, for approaching the Tribunal in
such a situation, there is a condition
according to which a written notice to
competent/Appellate Authority is required
to pass the order and if the order is not
passed within one month of service of
notice, then only aggrieved person can
approach the Tribunal. In this case, the
appeal itself was filed beyond period of 90
390 INDIAN LAW REPORTS ALLAHABAD SERIES
days prescribed under Rule 11 of the Rules
of 1999.

19. Now, the first question is as to
whether the appeal was rightly rejected by
the Appellate Authority vide order dated
25.01.2017.

20. In the instant case, the appeal was
not filed strictly in terms of Rule 11 of the
Act of 1999 by the review-applicant. In
other words, the appeal was filed by the
review-applicant after expiry of prescribed
period of limitation i.e. 90 days and the
same was summarily dismissed in terms of
Rule 11. At the cost of repetition, it needs
to be mentioned that in the Rules there is
no provision under which the Appellate
Authority can condone the delay in
preferring the appeal.

21. This Court finds that the Appellate
Authority rightly rejected the appeal
summarily being barred by limitation
because the Appellate Authority under Rule
11 of the Rules of 1999, as observed
hereinabove, has no power to condone the
delay in preferring the appeal, which
should be filed within the prescribed period
of limitation i.e. 90 days.

22. The next question to be dealt with
by this Court is whether the Tribunal,
despite the claim petition being filed within
limitation from the date of order of
Appellate Authority dated 25.01.2017,
rightly rejected the claim petition being
barred by limitation. In this regard, this
Court is of the view that the Tribunal has
rightly rejected the claim petition being
barred by limitation for the following
reasons:-

(i) In this case, the appeal was filed
after about more than one year from the
date of order of Disciplinary Authority
dated 20.03.2015 i.e. on 11.04.2016 which
was in violation of Rule 11 of Rules of
1999. Appellate authority does not have
any power to condone such delay.

(ii) Vide order dated 25.01.2017, the
appeal was rejected being barred by
limitation, rightly so.

(iii) According to Section 5(1)(b)(ii) of
the
Act
of
1976,
if
a
statutory
representation or appeal or revision or any
other petition is preferred strictly in
accordance
with
the
applicable
Rules/Government Orders, then in that
eventuality alone, the period during which
the said representation/appeal/revision was
pending can be excluded for the purposes
of computing the limitation to approach the
Tribunal, which as per Section 5(1)(b)(i) is
one year and the Division Bench of this
Court has already observed that no
application for condonation of delay would
be maintainable to condone the delay in
approaching the Tribunal challenging the
order of punishment passed by the
Disciplinary
Authority
or
Revisional
Authority under the Rules and as such, in
view of limitation i.e. one year provided
under Section 5(1)(b)(i), the claim petition
challenging
the
main
order
dated
20.03.2015 which was not affirmed on
merits by the appellate order dated
25.01.2017 was neither entertainable nor
maintainable in the year 2017 before the
Tribunal.

(iv) It is trite that once the limitation
period starts it cannot be stopped by any
force except by the force of law. In the
instant case, the limitation to approach the
Appellate authority concerned started on
20.03.2015 (date of order passed by the
Disciplinary Authority) and the appeal
under the law (Rule 11) was filed after
about more than one year, beyond the
prescribed period i.e. 90 days from the date
9 All. Ashok Singh & Ors. Vs. D.I.O.S.
391
of
order
which
was
dismissed
on
25.01.2017 being barred by limitation, as
such, the period between 20.03.2015 and
25.01.2017 cannot be considered excluded
in
terms
of
Section
5(1)(b)(ii)
for
approaching
the Tribunal
so
far
as
challenge to the punishment order dated
23.03.2015 is concerned. Thus the claim
petition so far as it challenged the
punishment order dated 20.03.2015 was
clearly barred by limitation. It is not a case
where the punishment order on being
challenged in appeal under Rule 11 of the
Rules of 1999 was affirmed partially or
wholly in which case the period of
pendency of appeal would have to be
excluded for computing limitation for fresh
claim petition, but, it was a case where the
appeal was not filed within the limitation
prescribed under Rule 11 thus it was not in
accordance with Rules, consequently, the
period of pendency of appeal would neither
stop nor extend the limitation and it will
not be excluded from such computation and
limitation will have to be calculated from
the date of the punishment order i.e.
20.03.2015.

23. So far as challenge to the said
order is concerned. It being so the claim
petition filed in the year 2017 was clearly
barred by limitation which was one year
from 20.03.2015, so far as challenge to the
appellate
order
dated
25.01.2017
is
concerned the claim petition was within
limitation but its scope was confined only
to the validity of the appellate order which
was not on merits but only on the point of
limitation. Thus, the Tribunal at best could
have gone into the question as to whether
the appeal was rightly dismissed as barred
by limitation or not, nothing more.

24. We have already held that the
appellate order did not suffer from any
error and the tribunal rightly held the
appeal to be barred by limitation. Thus, it
rightly did not interfere with the appellate
order.

25. Thus, the Tribunal, in the opinion
of this Court, upon due consideration
rightly declined to entertain the claim
petition preferred by review-applicant so
far as challenge to order dated 20.03.2015
is concerned and thereafter, this Court
dismissed the petition upholding the view
of
the
Tribunal.
Now,
this
review
application has been filed, which, to the
view of this Court, for the reasons
aforesaid, is completely mis-conceived as
there is no error apparent on the face of the
record nor any valid ground for review of
judgment dated 28.03.2019 and it is
accordingly dismissed. Costs made easy.
----------
(2023) 9 ILRA 391
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.08.2023

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ-A No. 8466 of 1989

Ashok Singh & Ors. ...Petitioners
Versus
D.I.O.S. ...Respondent

Counsel for the Petitioners:
H.S. Sahai, Girish Chandra Verma, H.G.S.
Parihar, M.S. Rathore, Priti Saxena. U.S. Sahai

Counsel for the Respondents:
C.S.C., I.P. Shukla, O.P.M. Tripathi

Service Law - U.P. Secondary Education
Service
Commission
(Removal
of
Difficulties) Order, 1991 - Section 2 - U.P
Secondary Education Services Selection
Boards Act, 1982 - Sections 18, 33-A(1-C)
- Termination of ad hoc appointment -