# Anand Kumar Mishra v. State of U.P. & Ors

- **Citation:** (2022) 5 ILRA 1227
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-10
- **Case number:** Writ-A No. 9049 of 2020
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anand-kumar-mishra-v-state-of-u-p-ors-48466
- **Pages:** 11

## Headnote

Civil Law - Constitution of India,1950 -
Article 226, - UP King George Medical
University Act, 2002 - Sections 4, 13,
42(1) & 42(2) - UP Recruitment of
Dependants
of
Government
Servants
(Dying-in-Harness) Rules, 1974 - Rule - 5
- Compassionate Appointment - father of
petitioner died-in-harness - Complaint received
1228 INDIAN LAW REPORTS ALLAHABAD SERIES
that petitioner obtained such Appointment
illegally by concealing the factum of his mother's
employment in KGMU - Disciplinary Enquiry
initiated - Charges were framed - petitioner
replied - Enquiry Officer exonerated him on the
ground that family members of several other
compassionate
appointees
have
already
employed in KGMU - enquiry report was
accepted by Vice Chancellor - Second complaint
received - at this time St. Govt. issued the
impugned
orders
-
to
initiate
Impugned
Disciplinary proceeding against petitioner as well
as against all other similar appointee including
against the earlier Enquiry Officer - Writ Petition
- interim protection in favour of petitioner -
Court held that, while exercising the writ
jurisdiction under Article 226 - A writ court is
not for scuttle any such disciplinary proceedings
nor to protect any possible illegality - hence writ
Petition disposed of - with directions to the
Registrar of KGMU to take the disciplinary
proceedings to its logical end of justice as per
law accordingly. (Para - 32, 33, 35, 38, 39)

Writ Petition Disposed of. (E-11)

List of Cases cited: -

## Text

5 All. Anand Kumar Mishra Vs. State of U.P. & Ors.
1227
further stated that there was some quarrel
with her family members of in-laws between
her. She did not file any complaint against
her first husband and her family members.
She was divorsed by her first husband in
February, 2008. She showed ignorance
regarding payment of maintenance during
iddat by her first husband after divorce. She
has further stated that divorce with her first
husband was taken place with mutual
consent. She has further stated that her
maternal uncle Athar father of the accused
Jamal Ahmed was in Dubai at the time of her
marriage. She has further stated that her
family members of in-laws forbade her not to
make complaint regarding dowry to her
maternal grandfather. She has further stated
that she remained in her in-laws house only
for one month and thereafter she came to her
parents house after bidai and since then she is
living in her parents house. She has further
stated that the relations of her Mausa
Shahabuddin and Jamal Ahmed was tensed.
She has further stated that after the divorce
from her first husband her son was born after
11 months. She has admitted in her statement
that her first husband has divorced her in
February, 2008 and her marriage with Jamal
Ahmed was taken place on 21.5.2008. From
perusal of the statement of Smt. Habiba (PW1), it is clear that she has admitted that she
went to the house of her in-laws once and
thereafter her brother visited to her and taken
her back to his home.

9. In above circumstances, I find it
justified that prosecution case is not proved
beyond reasonable doubt and learned lower
court has rightly acquitted the accused from
the charges of offence punishable under
Sections 498-A, 323 I.P.C. From above
discussion, it is proved that the complaint
was filed on false and frivolous ground. A
special leave to appeal could be granted
only where the view taken by acquitting
judge is clearly unreasonable, it is the duty
of the court to punish the guilty person
when the guilt is established beyond
reasonable doubt not less than, it is the duty
to acquit the accused when it is not so
established.

10.
In
such
circumstances,
the
impugned judgement and order of acquittal
is justified and even it is not a such case in
which
two
opinion
can
be
drawn.
Accordingly, I find no merit in the
application for special leave to appeal and
consequently, the application for special
leave to appeal is dismissed.

11. Lower court record be returned
back to the concerned court forthwith.
----------
(2022)05ILR A1227
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.05.2022

BEFORE

THE HON'BLE RAJAN ROY, J.

Writ-A No. 9049 of 2020

Anand Kumar Mishra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Srideep Chatterjee

Counsel for the Respondents:
C.S.C., Abhinav Trivedi, Avadhesh Kumar Singh,
Baldev Singh, Dr. V.K. Singh, Shubham Tripathi

Civil Law - Constitution of India,1950 -
Article 226, - UP King George Medical
University Act, 2002 - Sections 4, 13,
42(1) & 42(2) - UP Recruitment of
Dependants
of
Government
Servants
(Dying-in-Harness) Rules, 1974 - Rule - 5
- Compassionate Appointment - father of
petitioner died-in-harness - Complaint received
1228 INDIAN LAW REPORTS ALLAHABAD SERIES
that petitioner obtained such Appointment
illegally by concealing the factum of his mother's
employment in KGMU - Disciplinary Enquiry
initiated - Charges were framed - petitioner
replied - Enquiry Officer exonerated him on the
ground that family members of several other
compassionate
appointees
have
already
employed in KGMU - enquiry report was
accepted by Vice Chancellor - Second complaint
received - at this time St. Govt. issued the
impugned
orders
-
to
initiate
Impugned
Disciplinary proceeding against petitioner as well
as against all other similar appointee including
against the earlier Enquiry Officer - Writ Petition
- interim protection in favour of petitioner -
Court held that, while exercising the writ
jurisdiction under Article 226 - A writ court is
not for scuttle any such disciplinary proceedings
nor to protect any possible illegality - hence writ
Petition disposed of - with directions to the
Registrar of KGMU to take the disciplinary
proceedings to its logical end of justice as per
law accordingly. (Para - 32, 33, 35, 38, 39)

Writ Petition Disposed of. (E-11)

List of Cases cited: -

1. Mohd. Zamil Ahmed Vs St. of Bihar & ors. -
(2016 (2) ESC 242 (SC),

2. Sumit Kumar Verma Vs St. of U.P. & ors. -
Writ - A No.755 of 2022).

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

1. Heard Sri S.K. Kalia, learned
Senior Advocate assisted by Sri Srideep
Chaterjee,
learned
counsel
for
the
petitioner, Sri Subham Tripathi, learned
counsel
for
King
George
Medical
University, Lucknow (KGMU). Dr. V.K.
Singh,
learned
counsel
for
the
applicant/complainant
seeking
impleadment has also been heard.

2. By means of this petition the
petitioner has challenged the Government
Order dated 02.06.2020 so far as it relates
to
issuance
of
directions
to
the
appointing/disciplinary authority of the
petitioner for taking appropriate decision
with respect to the appointment of the
petitioner. It has also been prayed that the
petitioner be allowed to work on the post of
Head Assistant and be paid regular salary
as and when the same falls due.

3. Pleadings have been exchanged.

4. This Court on 18.06.2020 had
asked Sri Abhinav Narain Trivedi, learned
counsel for the KGMU to file a counter
affidavit bringing on record the final
decision which may have been taken on the
inquiry report submitted by Dr. Abbas
Mehndi. It was further ordered that any
action taken in the meantime shall abide by
further orders/decision in this petition.
Subsequently, the matter was taken up on
06.07.2020 when Sri Abhinav Narain
Trivedi sought an adjournment and an
interim protection was given to the
petitioner that till 08.07.2020 no final order
shall
be
passed
in
the
impugned
proceedings by the concerned opposite
parties, however, the interim order shall not
be extended on the next date without
hearing unless it is impossible to hear the
matter. The interim order has continued
since then.

5. The undisputed facts before the
Court are that the father of the petitioner
was employed as Chowkidar. He died in
harness on 30.11.2003. The mother of the
petitioner, namely, Manju Mishra who was
already employed as Sick Attendant in
KGMU itself, submitted an application on
16.12.2003 for providing compassionate
appointment to her son i.e., the petitioner.
The petitioner also applied for such
compassionate appointment on 19.12.2003.
The factum of his mother being already
employed in KGMU was not mentioned in
5 All. Anand Kumar Mishra Vs. State of U.P. & Ors.
1229
his application. Even in the application of
the mother this fact was not mentioned. He
was
appointed
as
Junior
Clerk
on
compassionate basis on probation period of
one year on 21.04.2004 with the approval
of the Vice Chancellor. His services were
confirmed on 27.07.2005 and he was
promoted as Senior Clerk on 31.05.2006.
He was thereafter promoted as Senior
Assistant on 01.09.2010. Thereafter, as a
result of cadre restructuring, he was made
Head Assistant on 02.01.2015.

6. On 04.07.2018 a complaint was
made by an Advocate, namely, Anand
Kumar Pandey about the petitioner having
secured
compassionate
appointment
illegally by concealing the fact that his
mother was already employed in KGMU
on
the
date
he
was
given
such
compassionate appointment and that she
continued to be in such employment. On
receipt of such complaint, the Under
Secretary, Medical Education Department
of the Government of U.P. wrote to the
Registrar, KGMU, Lucknow on 20.07.2018
to provide point-wise report on the
complaint
dated
04.07.2018.
On
06.09.2018, a reminder was sent to the
Registrar, KGMU by the Government in
this regard.

7.

On
28.12.2018
the
State
Government, in response to the letter of
Registrar,
KGMU
dated
26.09.2018
seeking its guidance in the matter of
alleged illegal appointment of the petitioner
by concealing relevant facts, informed him
about Rule 5 of U.P. Recruitment of
Dependent
of
Government
Servants
(Dying-in-Harness) Rules, 1974 and that
the matter be examined and appropriate
action be taken by him in his capacity as
appointing authority, as per Rules.

8.

On
22.02.2019
disciplinary
proceedings were initiated against the
petitioner and a charge-sheet was issued to
him on 22.02.2019 itself with approval of
the Registrar. The petitioner submitted his
reply on 07.06.2019 inter alia stating
therein that he was not aware about the
Rule position or legal position on the
subject of compassionate appointment, as
such, there was no concealment on his part
while applying for the same and also that
other similar compassionate appointments
of same nature have been made of persons
whose family members were already
employed with KGMU giving nine such
names. He submitted supplementary reply
on 28.09.2019 denying the application
Form (not the letter dated 19.12.2003)
relied upon by the opposite parties by
saying that it was neither in his writing nor
it had been signed by him. On 05.12.2019
an inquiry report was submitted by the
Enquiry Officer. The Registrar in its
wisdom
although
he
was
appointing/disciplinary authority of the
petitioner placed the matter before the Vice
Chancellor who as per noting dated
14.01.2020 accepted the inquiry report and
approved exoneration of the petitioner from
the charges levelled against him. The
Registrar
who
was
the
appointing/disciplinary authority did not
pass any final order in the matter.

9. Sri Subham Tripathi, learned
counsel for KGMU informed the Court
during the course of argument that against
any
order
of
punishment
or
order
terminating the services of an employee
such as the petitioner, appeal lies before the
Vice Chancellor under Statute 14 (iv) of the
Chatrapati
Shahuji
Maharaj
Medical
University First Statutes, 2011. Thus, the
final order was not passed by the
1230 INDIAN LAW REPORTS ALLAHABAD SERIES
appointing/Disciplinary authority but by
the appellate authority.

10. On 27.04.2020, the complainant
again made a complaint to the State
Government whereupon a D.O. letter dated
01.05.2020 was issued to the Registrar,
KGMU, Lucknow referring to the earlier
order of the State Government dated
28.12.2018 asking him to submit pointwise report on the complaint dated
27.04.2020. On 08.05.2020, the Registrar
responded to the letter of the Government
mentioning relevant facts including the
inquiry report as also new facts which had
come to light regarding several other
compassionate appointments having been
made where family members were already
employed in KGMU and also stating that in
view of these facts a fresh inquiry had been
ordered
in
respect
of
such
other
appointments which were similarly made,
and
Prof. Abbas
Mehndi,
Professor,
Department of Biochemistry, KGMU had
been appointed as the Enquiry Officer. It
refers to the approval of the Vice
Chancellor dated 19.02.2020 for the
aforesaid fresh action and that based on the
report, further action shall be taken.

11. On 02.06.2020, the impugned
Government Order was issued by the State
Government wherein serious objections
were raised as to findings of the Enquiry
Officer
exonerating
the petitioner
in
disregard of Rules of 1974 merely because
nine
other
similar
compassionate
appointments had been made. The State
Government disagreed with the entire
exercise as also the report of the Enquiry
Officer. It also directed for action against
the Enquiry Officer. It also directed the
appointing authority/disciplinary authority
to take a decision with regard to petitioner's
appointment as per Rules. A direction was
also issued for completing the inquiry
against other similar appointees and taking
action as per Rules. It is this Government
Order which is impugned.

12. In this context it is not out of
place to mention that under Section 42 (1)
of the 2002 Act, the First Statutes of the
University (KGMU) shall be made by the
State
Government,
by
notification,
provided that, for so long as the first
statutes are not so made, the Statues of the
Lucknow University as immediately before
the appointed date insofar as they are not so
inconsistent with the provisions of this Act,
shall, subject to such adaptation and
modification whether by way of repeal,
amendment or addition, as may be
necessary or expedient, as the Statement
Government may, by notification provide
continue in force, and any such adaptation
or modification shall not be called in
question. In this context, the Court may
refer to Statute 39 of the first Statutes of the
Lucknow University as amended in 2001,
which reads as under:

"39.00. ;fn fdlh LFkk;h deZpkjh dh lsok esa
jgrs gq, e`r gks tk; vkSj e`r deZpkjh dh iRuh ;k
ifr 1⁄4tSlh Hkh fLFkfr gks1⁄2 dsUnzh; ljdkj ;k fdlh
jkT; ljdkj ;k dsUnzh; ljdkj ds LokfeR;k/khu ;k
mlds }kjk fu;afa=r fdlh fuxe 1⁄4ftlesa fo'ofo|ky;
Hkh 'kkfey gS1⁄2 ds v/khu igys ls lsok;ksftr u gks rks
mlds dqVqEc ds ,sls ,d lnL; dks tks] dsUnzh;
ljdkj ;k jkT; ljdkj ds LokfeR;k/khu ;k mlds
}kjk fu;afa=r fdlh fuxe 1⁄4ftlesa fo'ofo|ky; Hkh
'kkfey gS1⁄2 ds v/khu igys ls lsok;ksftr u gks
egkfo|ky; esa lh/kh HkrhZ ds r`rh; Js.kh ;k prqZFk
Js.kh ds fjDr f'k{k.kksRrj in ij fu;qfDr ds fy,
deZpkjh dh e`R;q ds fnukad ls 05 o"kZ ds Hkhrj
vkosnu i= nsrk gS vkSj ,sls fjDr f'k{k.kksRrj in ds
fy, U;wure 'kSf{kd vgZrk j[krk gks izcU/kra= }kjk
funs'kd] mPp f'k{kk ds iwoZ vuqeksnu ls p;u dh
izfdz;k vkSj vf/kdre vk;q lhek dks f'kfFkr djds
fu;qfDr fd;k tk ldrk gSA

Li"Vhdj.k & bl ifjfu;e ds iz;kstu ds
fy,&
5 All. Anand Kumar Mishra Vs. State of U.P. & Ors.
1231

1 "vkfJr" dk rkRi;Z e`rd ds iq= mldh iq=h
vfookfgr ;k fo/kok iq=h] iq= mldh fo/kok ;k mldk
fo/kqjA

2 "deZpkjh" ds vUrxZr laLFkk esa dk;Zjr
v/;kid Hkh gSA"

13. The aforesaid statute very clearly
provides that if wife or husband of a
permanent employee, who dies in harness,
is not already employed under the Central
Government or any State Government (in
which the University is included), a
member of his family who is not already
employed may be appointed by the
management, etc.

14. In view of Section 42 (1) of the
2002 Act Statue 39 of the First Statues of
Lucknow
University
applies
for
compassionate appointment in KGMU also
and there is an embargo in the said
provision regarding appointment of a
family member of a deceased employee if
husband or wife of the deceased is already
employed under the Central Government or
the State Government, including the
University which in this case is the King
George Medical University.

15. Statute 39 as quoted hereinabove
was inserted in 2001 that is prior to
petitioner's appointment in 2004.

16. A similar provision is contained in
Rule 5 of the U.P. Recruitment of
Government Servant (Dying-in-Harness)
Rules, 1974. Said Rule 5 as it existed at the
time of petitioner's appointment vide
notification
dated
20.01.1990
-
5th
amendment to Rules 1974 read as under:

"5. Recruitment of a member of the
family of the deceased.-(1) In case a
Government servant dies in harness after
the commencement of these rules and the
spouse of the deceased Government servant
is not already employed under the Central
Government or a State Government or a
Corporation owned or controlled by the
Central
Government
or
a
State
Government, one member of his family who
is not already employed under the Central
Government or a State Government or a
Corporation owned or controlled by the
Central Government or a State Government
shall, on making an application for the
purposes, be given a suitable employment
in Government Service on a post except the
post which is within the purview of the
Uttar
Pradesh
-
Public
Service
Commission, in a relaxation of the normal
recruitment rules, if such person

(1)
Fulfills
the
educational
qualifications prescribed for the post,

(ii)
is
otherwise
qualified
for
Government service, and

(iii)
makes
the
application
for
employment within five years from the date
of death of the Government Servant:

Provided
that
where
the
State
Government is satisfied that the time limit
fixed for making the application for
employment causes undue hardship in any
particular case, it may dispense with or
relax the requirement as it may consider
necessary for dealing with the case in a just
and equitable manner.
(2) As for as possible, such an employment
should be given in the same department in
which the deceased Government Servant
was employed prior to his death"

17. Thus, Rule 5 of the 1974 Rules as
amended in 1990 also imposes an embargo
on
compassionate
appointment
where
spouse
of
the
deceased
is
already
employed.

18. The Court was informed about a
decision of Executive Council dated
1232 INDIAN LAW REPORTS ALLAHABAD SERIES
31.08.2004 of the University that the Rules
which are applicable to State Government
employees will apply to employees of
KGMU till it frames its own Rule with the
approval
of
the
State
Government.
Referring to this resolution, it was argued
that Rules of 1974 will apply. Although
even as per Rule 5 of Rules of 1974 there is
an embargo/prohibition in making such
appointment if the spouse of the deceased
is already employed, the legal basis of this
decision appears to be shaky in view of
Section 42 (1) of the Act 2002. Moreover,
the appointment of the petitioner having
been made prior to the decision dated
31.08.2004
i.e.,
on
21.04.2004,
this
argument even otherwise is not acceptable.
In this case Statute 39 of Lucknow
University will apply. Even if Rule 5 of
Rules of 1974 were to apply it would not
make any difference as it also contains
similar embargo, therefore, reference to
Rule 5 of Rules of 1974 in the charge-sheet
issued to the petitioner or any other
document will not by itself enure to his
advantage as similar provision is contained
in Statute 39 referred hereinabove nor will
it prejudice the University.

19. Moreover, the object behind such
compassionate appointment is to provide
immediate financial assistance to a family
which would be in financial distress after
death of the bread earner. It is not intended
to be a windfall for the family in the sense
that
there
is
no
such
legislative
mandate/obligation that even if it has
sufficient means to sustain itself and has
other family member(s) in employment,
even then such appointment has necessarily
to be provided. It is not so. It is not as a
matter of an indefeasible right.

20. The charge against the petitioner
is that at the time of applying for
compassionate appointment his mother was
already
employed
as
"Aaya"
(Sick
Attendant) but this fact as also the fact
relating to income was concealed and
compassionate appointment was obtained
by misleading the University.

21. The contention of Sri Kalia was
that the State Government did not have any
authority/jurisdiction to direct KGMU to
act in a particular manner that too after
making observations on merits of the
charges against the petitioner and findings
recorded by the Enquiry Officer, therefore,
the Government Order being without
jurisdiction is liable to be quashed. In this
context, he referred to Section 13 of the
U.P. King George Medical University Act,
2002, which has been relied by counsel for
opposite parties, to submit that the
eventualities and circumstances mentioned
therein are not at all attracted in context of
the orders passed by the Government as
impugned herein, therefore, the
said
Government Order is not referable to
Section 13.

22. Section 13 reads as under:

"13 (1) The State Government shall
have the right to cause an inspection to be
made by such person or persons. as it may
direct, of the University including its
buildings,
libraries,
laboratories,
workshops and equipment and also of the
examinations teaching and all other works
conducted or done by the University or, to
cause an inquiry to be made in the like
manner in respect of any matter connected
with the administration and finances of the
University.

(2) Where the State Government
decides to cause an inspection or inquiry to
be made under sub-section (1), it shall
inform the University of the same through
5 All. Anand Kumar Mishra Vs. State of U.P. & Ors.
1233
the Registrar, and any person nominated by
the Executive Council may be present at
such inspection or inquiry as representative
of the University and he shall have the
right to be heard as such:

Provided that no person shall appear,
plead or act as legal practitioner on behalf
of the University at such inspection or
inquiry.
(3) The person or persons appointed to
inspect or inquire under sub-section (1)
shall have all the powers of a civil court,
while trying a suit under the Code of Civil
Procedure, 1908, for the purposes of taking
evidence on oath and of enforcing the
attendance of witnesses and compelling
production of documents and material
objects, and shall be deemed to be a civil
court within the meaning of sections 345
and 346 of the Code of Criminal
Procedure, 1973, and the proceedings
before him or them shall be deemed to be
judicial proceedings within the meaning of
sections 193 and 228 of the Indian Penal
Code.

(4) The State Government shall
address the Vice Chancellor with reference
to the result of such inspection or inquiry,
and the Vice-Chancellor shall communicate
to the Executive Council the views of the
State Government with such advice as the
State Government may offer upon the
action to be taken thereon.

(5) The Vice-Chancellor shall then,
within such time as the State Government
may fix, submit to it a report of the action
taken or proposed to be taken by the
Executive Council.

(6) If the University authorities do not,
within a reasonable time, take action to the
satisfaction of the State Government, the
State Government may, after considering
any explanation which the University
authorities
may
furnish,
issue
such
directions, as it may think fit, and the
University authorities shall be bound to
comply with such directions.
(7) The State Government shall send to the
Chancellor a copy of every report of an
inspection or inquiry caused to be made
under sub-section (1) and of every
communication received from the ViceChancellor under sub-section (5), and of
every direction issued under sub-section
(6), and also of every report or information
received in respect of compliance or non
compliance with such directions."

23. As far as Section 13 is concerned,
there is no doubt that the State Government
has a right to cause an inspection to be
made by such person or persons, as it may
direct, of the University including its
buildings, libraries, laboratories, workshops
and
equipment
and
also
of
the
examinations teaching and all other works
conducted or done by the University or, to
cause an inquiry to be made in the like
manner in respect of any matter connected
with the administration and finances of the
University. The provision is quite wide in
its scope as to the subject matter of such
inquiry considering the use of the words
"and all other works conducted or done by
the University" and "to cause an inquiry to
be made in the like manner in respect of
any
matter
connected
with
the
administration
and
finances
of
the
University". The term ''administration' used
therein has a wide import/meaning so as to
include any illegal appointment(s) in the
University, but then, as is borne out from
the provision such inspection or inquiry as
envisaged therein is to be conducted by a
person other than one involved in the
functioning of the University. If any action
is to be taken under Section 13, then entire
procedure is provided in the said Section
itself. There is nothing on record including
the counter affidavit filed by the State
1234 INDIAN LAW REPORTS ALLAHABAD SERIES
Government to show that any such
procedure was adopted. For example sub
Section (2) of Section 13 says where the
State Government decides to cause an
inspection or inquiry to be made under subsection (1), it shall inform the University of
the same through the Registrar, and any
person nominated by the Executive Council
may be present at such inspection or
inquiry as representative of the University
and he shall have the right to be heard as
such. Sub-Section (4) requires addressing
of report of such inspection or inquiry to
the Vice Chancellor who in turn shall place
it before the Executive Council with such
advice as the State Government may offer
upon the action to be taken thereon. A
report of the action taken is to be submitted
by the Vice Chancellor to the State
Government under sub-Section (5). This
procedure
has
not
been
followed.
Nevertheless, the State Government does
have wide powers to get an inspection or
inquiry conducted under Section 13 of the
2002 Act and also to issue direction to the
University under sub-Section (6) if the
University fails to take action and the
University authorities are bound to comply
with such directions and in this case it had
sought a report from the University before
issuing the order dated 02.06.2020.

24. It is not out of place to mention
that the State Government provides the
funds for payment of salary, etc. to the
Officers and employees of the KGMU and
it also sanctions the posts, therefore, to that
extent certainly the State Government has a
stake in the running of the Institution and if
it finds any illegality in the Institution,
certainly it can ask KGMU to act as per the
provisions of the Act, Rules, etc. made
therein, therefore, even if the Government
Order dated 02.06.2020 is not strictly as per
the procedure prescribed in Section 13 of
the Act of 2002, it cannot be said to be
absolutely unfounded or arbitrary and
uncalled for in the facts of the case,
especially in view of the cryptic noting of
the Vice Chancellor dated 14.01.2020
accepting the inquiry report, even if this
notice was not brought to the notice of the
Government.

25. State Government's anxiety in the
matter
is
understandable
but
any
observation by it on merits of the matter
conclusively in the facts of this case should
have been avoided as it could prejudice the
appointing/ disciplinary authority in taking
a final decision and could be perceived by
the petitioner as prejudging of the matter,
therefore, this aspect needs to be addressed
by this Court which shall be done
hereinafter.

26. Learned Standing Counsel relied
on Section 4 of the 2002 Act. Section 4 on
a bare reading of it is not at all attracted.

27. The submission of Sri Kalia,
learned Senior counsel that in this case the
Government Order needs to be quashed as
it is without jurisdiction and rest of the
issues should be left to the discretion of the
University specially as the Vice Chancellor
has already accepted the inquiry report. The
show cause notice issued by the Registrar
thereafter is on the dictates of the State
Government, therefore, though it is not
challenged specifically in this petition, it is
also unsustainable.

28. On the other hand, Sri Subham
Tripathi, learned counsel for the KGMU
submitted
that
the
appointment
was
patently illegal and the fact that the
petitioner's mother was already employed
in the KGMU itself was not disclosed
either by the mother or by the petitioner
5 All. Anand Kumar Mishra Vs. State of U.P. & Ors.
1235
while seeking compassionate appointment.
As regards nine persons, who as alleged by
the petitioner, had been similarly appointed,
on scrutiny, it was found that there were
only four such persons who had been given
compassionate appointment even though
their family members were already working
in the University and services of all these
four persons had been terminated. The
irony is that while their services have been
terminated petitioner continues in service
on account of interim order. He says that all
these four persons have filed writ petitions
before this Court and this Court has
dismissed one of the writ petitions bearing
Writ A No.755 of 2022; Sumit Kumar
Verma vs. State of U.P. and others by a
detailed
judgment. As
regards
other
persons, writ petitions are still pending.

29. He submitted that reliance placed
by the petitioner's counsel on the decision
of the Supreme Court in the case of Mohd.
Zamil Ahmed Vs. State of Bihar And
Others; 2016 (2) ESC 242 (SC), which was
the basis for granting interim order in this
case, is misplaced, as, in the said case there
was no concealment or misrepresentation
of material facts. In this regard, he invited
the attention of the Court especially to Para
11.1 of the said report.

30. Sri Kalia submitted that, in fact,
there was no concealment by the petitioner
while seeking compassionate appointment.
The form which was being relied upon by
the opposite parties and a copy of which
has been annexed by the petitioner himself
after obtaining it under the Right to
Information Act, has neither been filled by
the petitioner nor is signed by the petitioner
a fact which distinguishes the case of the
petitioner from the case of the other four
persons in whose case, presumably, the
form was signed by them and the column
wherein the occupational status of the
family members was to be mentioned was
either left vacant or was filled incorrectly.

31. The question as to whether
petitioner concealed material facts as
alleged in the charge-sheet to obtain an
illegal compassionate appointment or not is
to be judged by the Disciplinary authority.

32. Having considered the matter, this
Court is of view that disciplinary authority
of the petitioner being the Registrar of the
University he should have taken a call on
the inquiry report keeping in mind the
entire facts and material on record
including the Rule position as has been
noticed hereinabove and the law on the
subject, especially the object for which
compassionate appointment is to be made,
instead, he very conveniently sent the
matter to the Vice Chancellor, who, in fact
would be the appellate authority against
any order passed by the Registrar in such
proceedings. Moreover, the noting of the
Vice Chancellor dated 14.01.2020, which is
on record, is a cryptic noting which does
not disclose any application of the mind to
the facts and material on record of the
disciplinary proceedings. Most important,
the competent authority in this case to take
a decision was the Registrar but he has not
taken
any
decision.
Therefore,
the
order/noting of the Vice Chancellor shall
not be taken into consideration any further
in these proceedings. The fact that it is not
under challenge makes no difference as this
Court while exercising jurisdiction under
Article 226 of the Constitution of India has
to do substantial justice.

33. It is the disciplinary authority who
has to take a decision on the inquiry report
considering the entire material on record in
the light of the charges levelled against the
1236 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner. Disciplinary authority is not
bound to accept the inquiry report. He can
differ from it entirely or in part. If he
differs he has to give reasons for it in
writing an then inform the delinquent
accordingly informing him about the points
of difference with reasons, giving him an
opportunity to defend himself. He has to
consider the matter independently and
objectively in the light of the material on
record, the Rules applicable and the law on
the subject.

34. The fact that he has to take a
decision independently, uninfluenced by
anyone, does not mean that he can act
whimsically or arbitrarily, ignoring the
facts, evidence and Rule. It only means that
decision has to be his own, with due and
proper application of mind to all material
aspects on fact, Rules and law.

35. Having said so this Court cannot
ignore
provisions
of
law
discussed
hereinabove as also the facts of this case.
The charge against the petitioner is of
having
obtained
compassionate
appointment illegally by concealing the
factum of his mother's employment in
KGMU, who in fact is still in employment,
as also, as alleged, by concealing income of
his family. A Writ Court while exercising
jurisdiction under Article 226 of the
Constitution of India is not to scuttle any
such inquiry/proceedings nor to protect any
possible
illegality,
therefore,
the
proceedings have to be taken by the
Registrar to its logical end as envisaged in
law.

36. In view of the above, instead of
quashing the order of the Government
dated 02.06.2020, ends of justice would
suffice if it is provided that the impugned
Government Order and the observation
made therein shall be read and understood
by the University as an expression of
serious concern in the matter requiring the
competent authority to take appropriate
decision in the facts of the case and in the
light of the Rules applicable and law on the
subject, nothing more. It is ordered
accordingly. No observation or direction
therein shall be treated as conclusive on
any of the issues involved regarding which
the Registrar, KGMU is to take a decision.
This will allay the fears of the petitioner
and
on
the
other
hand
allow
the
proceedings to go in an independent and
objective manner as discussed hereinabove.
The impugned Government Order shall
only be treated as a communication to the
KGMU about its concern in the matter
requiring the University authorities to act
as per Rules/law. If the University does not
act as per law State Government can
proceed under Section 13 of the Act 2002.
Any observations/directions therein on
merits of the issues regarding which the
Registrar is competent to take a decision
shall not be read by the Registrar, subject to
whatever has been stated hereinabove i.e.
he will take a considered decision taking
into account the entire factual matrix, the
Rule position and the law on the subject.

37. It is not out of place to mention
that on 10.06.2020 the Registrar of the
University issued a show cause notice to
the petitioner albeit in pursuance to the
Government Order dated 02.06.2020. The
Court has perused the said show cause
notice which has been filed along with the
supplementary affidavit of the petitioner,
and even though it is not specifically
challenged, nevertheless, as the contents of
the show cause notice show detailed
reference to the Government Order dated
02.06.2020,
therefore,
this
notice,
obviously, as asserted by Sri Kalia, cannot
5 All. Raj Kumar Verma Vs. State of U.P. & Ors.
1237
be made the basis for any further action
which has to be an independent and
objective decision on the part of the
Registrar who is the competent authority.
Accordingly, this show cause notice shall
not be read or proceeded further instead a
fresh notice shall be issued by the Registrar
as ordered hereinafter.

38.

The
appointing/disciplinary
authority is directed to issue a fresh show
cause notice to the petitioner in the light of
the relevant rules which may be applicable
asking the petitioner to submit his response
to the same. Thereafter, considering the
response, if any submitted by the petitioner,
the appointing/disciplinary authority shall
take a final decision in the matter
independently and objectively considering
the entire facts of the case, material on
record (except the noting of the Vice
Chancellor dated 14.01.2020), the Rule
position i.e., Statute 39 quoted hereinabove,
and the law on the subject as may be placed
before
it,
but,
ignoring
the
observations/findings,
if
any
in
the
impugned
Government
Order
dated
02.06.2020 as to the merits of the matter,
which shall not be read at all by the
disciplinary authority for this purpose. He
shall take decision within two months.

39. If at any stage the appointing
authority/disciplinary authority forms an
opinion that instead of the proceedings at
hand, proceedings for cancellation of
appointment are liable to be undertaken
based on the material collected, it shall be
open for him to proceed accordingly as per
law.

40. The application of the applicant
seeking impleadment through Dr. V.K.
Singh, Advocate is disposed off as he has
been heard.

41. The petition is disposed of in the
aforesaid terms.
----------
(2022)05ILR A1237
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.03.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Appeal No.248 of 2022
(Under section 372 Cr.P.C.)

Raj Kumar Verma ...Appellant (In Jail)
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Rajiv Gupta, Sri Dileep Kumar, Sri Rajrshi
Gupta, Shristri Gupta

Counsel for the Respondents:
G.A.

Criminal Law - Criminal Procedure
Code,1973 - Section - 372, - Indian
Penal Code, 1860 - Section - 302, 394,
r/w Section 35-C - Criminal Appeal -
challenging
the
order
of
acquittal
-
Unnamed FIR, No prior animosity, neither
eye witnesses nor any recovery - names of
accused persons are included after one year
only
on
the
basis
of
one
alleged
extrajudicial confession - it is settled law
that an extra-judicial confession is a very
weak piece of evidence and same has to be
examined with extra care - prosecution fails
to established the charges against the
accused persons beyond the reasonable
doubt - finding of trial court cannot at all be
termed as perverse - hence acquitted is
proper - Appeal dismissed. (Para - 5, 6, 19,
17, 20, 21, 22)

Appeal Dismissed. (E-11)

List of Cases cited:-