# Balveer Singh v. State of U.P. and

- **Citation:** (2005) 2 ILRA 394
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-03-11
- **Case number:** Civil Misc. Writ Petition No. 16485 of 2001
- **Bench:** Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/balveer-singh-v-state-of-u-p-and-40461
- **Pages:** 5

## Headnote

(Punishment & Appeal) Rules 1991-Rule8 (2)-Dismissal Order-without holding
any
enquiry
or
without
any
order
dispensing holding inquiry-No reasons
recorded-statutory
requirement
of
recording the reasons about satisfaction
dispensing to hold enquiry also not
there-held-order
passed
by
S.P.
to
contrary to requirement of rule 8 (2)(b)
of act-can not sustained.

Held: Para 6 & 7

The Rules contemplate exercise of power
under Rule 8 (2)(b) for dispensing
holding of disciplinary enquiry when it is
not reasonably practicable to hold such
enquiry. The reasons thus which can
satisfy the requirement of Rule 8(2)(b)
has to be referable to not reasonably
practicable to hold an enquiry. No
reasons have been given in the order
which
can
be
said
to
fulfil
the
requirement
of
not
reasonably
practicable
to
hold
enquiry.
The
statutory requirement of exercising the
power is absent in the present case. As
observed above, no reasons have also
been given in the counter affidavit
bringing on the record the reasons on
the basis of which such satisfaction was
recorded by Superintendent of Police,
the court is at last to find out the basis
for invoking the power under Rule 8
(2)(b) of the Rules.

In above view of the facts, it is clear that
power
has
been
exercised
by
Superintendent of Police under Rule 8
(2)(b) contrary to the requirement as
laid down in Rule 8(2)(b). The order of
Superintendent of Police cannot be
sustained.
Case law discussed:
1991 SCC (1) 362
1996 (2) AWC-245
1994 (2) UPLBEC-1717
1998 (1) UPLBEC-638

## Text

394 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.3.2005

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 16485 of 2001

Ravindra Raghav

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

Counsel for the Petitioner:
Sri Ashok Khare
Sri V.M. Zaidi
Sri V.D. Chauhan

Counsel for the Respondents:
S.C.

U.P. Police Officers of subordinate ranks
(Punishment & Appeal) Rules 1991-Rule8 (2)-Dismissal Order-without holding
any
enquiry
or
without
any
order
dispensing holding inquiry-No reasons
recorded-statutory
requirement
of
recording the reasons about satisfaction
dispensing to hold enquiry also not
there-held-order
passed
by
S.P.
to
contrary to requirement of rule 8 (2)(b)
of act-can not sustained.

Held: Para 6 & 7

The Rules contemplate exercise of power
under Rule 8 (2)(b) for dispensing
holding of disciplinary enquiry when it is
not reasonably practicable to hold such
enquiry. The reasons thus which can
satisfy the requirement of Rule 8(2)(b)
has to be referable to not reasonably
practicable to hold an enquiry. No
reasons have been given in the order
which
can
be
said
to
fulfil
the
requirement
of
not
reasonably
practicable
to
hold
enquiry.
The
statutory requirement of exercising the
power is absent in the present case. As
observed above, no reasons have also
been given in the counter affidavit
bringing on the record the reasons on
the basis of which such satisfaction was
recorded by Superintendent of Police,
the court is at last to find out the basis
for invoking the power under Rule 8
(2)(b) of the Rules.

In above view of the facts, it is clear that
power
has
been
exercised
by
Superintendent of Police under Rule 8
(2)(b) contrary to the requirement as
laid down in Rule 8(2)(b). The order of
Superintendent of Police cannot be
sustained.
Case law discussed:
1991 SCC (1) 362
1996 (2) AWC-245
1994 (2) UPLBEC-1717
1998 (1) UPLBEC-638

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard counsel for the petitioner
and learned standing counsel. Counter and
rejoinder affidavits have been exchanged
between the parties with the consent of
the parties the writ petition is being
finally disposed of.

2. By this writ petition, the
petitioner has prayed for quashing the
order dated 21st October, 2000 passed by
Superintendent of Police dismissing the
petitioner from service dispensing holding
of the enquiry under the provisions of
U.P. Police Officers of the subordinate
ranks (Punishment and Appeal) Rules,
1991 (hereinafter referred to as the Rules)
and the appellate order dated 15th
February, 2001 dismissing the appeal
filed by the petitioner.

3. Learned counsel for the petitioner,
challenging the orders, contended that no
reasons have been given for dispensing
holding of the enquiry and dismissal of
the petitioner invoking the power under
Rule 8 (2) (b) of the Rules. The
2 All] Ravindra Raghav V. State of U.P. and others

 395
submission of counsel for the petitioner is
that no reasons having been recorded for
dispensing
holding
of
the
enquiry
invoking of power under Rule 8 (2) (b) is
unjustified. He has placed reliance on
judgment of this Court reported in (1991)
1 SCC 362, Jaswant Singh Vs. State of
Punjab and others, judgments of this
Court reported in 1996(1) AWC 245,
Balveer Singh Vs. State of U.P. and
others, (1994) 3 UPLBEC 1717, Deep
Narain Vs. Deputy Inspector General of
Police, Gorakhpur and others and
1998(1) UPLBEC 638, Brijendra Singh
Yadav Vs. State of UP and others.

I have considered the submissions
raised and perused the record.

Rule 8 of the Rules provides for
dismissal and removal. Rules 8(1) and
8(2) of the Rules which are relevant for
the present case, are extracted below :-

"8. Dismissal and removal- (1) No
Police Officer shall be dismissed or
removed from service by an authority
subordinate to the appointing authority.

(2) No Police Officer shall be
dismissed, removed or reduced in rank
except
after
proper
inquiry
and
disciplinary proceedings is contemplated
by these rules :

Provided that this rule shall not
apply -

(a) Where a person is dismissed or
removed or reduced in rank on the
ground of conduct which has led to his
conviction on a criminal charge; or

(b) where the authority empowered
to dismiss or remove a person or to
reduce him in rank is satisfied that for
some reason to be recorded by that
authority in writing, it is not reasonably
practicable to hold such enquiry; or

(c)
Where
the
Government
is
satisfied that in the interest of the security
of the State it is not expedient to hold such
enquiry.

4. Rule 8(2) (b) of the Rules
provides
that
where
the
authority
empowered to dismiss or remove a person
is satisfied that for some reason to be
recorded by that authority in writing, it is
not reasonably practicable to hold such
enquiry, the police officer shall be
dismissed or removed without proper
enquiry as contemplated in sub Rule (2)
of Rule 8 of the Rules. For invoking the
power under Rule 8 (2)(b) of the Rules
the authority empowered to dismiss has to
be satisfied for reasons to be recorded in
writing
that
it
is
not
reasonably
practicable to hold such enquiry. It is well
settled that when power under Rule 8 (2)
(b)
is
invoked
judicial
review
is
permissible where subjective satisfaction
of the authority that it was not reasonably
practicable to hold an enquiry was not
based on objective facts as laid down by
the apex court in Jaswant Singh's case
(supra). The apex court in Jaswant
Singh's case (supra) had considered the
provisions of Article 311(2) second
proviso (b) of the Constitution of India.
Rule 8(2)(b) of the Rules is para matena
with the second proviso (b) of Article 311
sub clause (2). The apex court in the
aforesaid
judgment
laid
down
two
conditions for invoking the power under
clause (b) of Rule 8(2) of the Rules.
Following was laid down in paragraph 4
of the said judgment.
396 INDIAN LAW REPORTS ALLAHABAD SERIES [2005

"4.........Insofar as clause (b) is
concerned this Court pointed out that two
conditions must be satisfied to sustain any
action taken thereunder. These are (i)
there must exist a situation which renders
holding of any inquiry -'not reasonably
practicable, and (ii) the disciplinary
authority must record in writing its
reasons in support of its satisfaction. Of
course the question of practicability
would depend on the existing fact
situation
and
other
surrounding
circumstances, that is to say that the
question of reasonable practicability must
be judged in the light of the circumstances
prevailing at the date of the passing of the
order. Although clause (3) of that article
makes the decision of the disciplinary
authority in this behalf final such finality
can certainly be tested in a court of law
and interfered with if the action is found
to be arbitrary of mala fide or motivated
by extraneous considerations or merely a
ruse to dispense with the inquiry. Also
see, Satyavir Singh v. Union of India,
Shivaji Atmaji Sawani v. State of
Maharastra and Ikrammuddin Ahmad
Borah
v.
Superintendent
of
Police,
Darrang.

5. The apex court further held in the
above judgment that clause (b) of second
proviso to Article 311 (2) can be invoked
only when the authority is satisfied from
the material placed before him that it is
not
reasonably
practicable
to
hold
enquiry. Further satisfaction has to be
based on certain objective facts and not
the out come of him or caprice of
concerned officer. Following was laid
down in paragraph 5 of the said
judgment:-

"5..........It was incumbent on the
respondents to disclose to the Court the
material in existence at the date of
passing of the impugned order in support
of the subjective satisfaction recorded by
respondent no. 3 in the impugned order.
Clause (b), of the second proviso to
Article 311 (2) can be invoked only when
the authority is satisfied from the material
placed before him that it is not reasonably
practicable to hold a departmental
enquiry- This is clear from the following
observation at page 270 of Tulsiram case
: (SCC p. 504 , para 130)

"A disciplinary authority is not
expected to dispense with a disciplinary
inquiry lightly or arbitrarily or out of
ulterior motives or merley in order to
avoid the holding of an inquiry or
because the departments case against the
government servant is weak and must
fail."

The decision to dispense with the
departmental enquiry cannot, therefore,
be rested solely on the ipse dixit of the
concerned
authority
-
When
the
satisfaction of the concerned authority is
questioned in a court of law, it is
incumbent on those who support the order
to show that the satisfaction is based on
certain objective facts and is not the
outcome of the whim or caprice of the
concerned officer......"

6. In the present case the order of
Superintendent of Police dismissing the
petitioner from service after invoking the
powers under Rule 8 (2)(b) of the Rules
has not given any reason as to why it is
not reasonably practicable to hold an
enquiry. The order notes the incident
dated 19th October, 2000 in which
allegation against the petitioner was made
that he along with other constables had
realized Rs. 50/- each from drivers of
2 All] Ravindra Raghav V. State of U.P. and others

 397
Combine Machines and when Incharge
Kotwali reached on the spot then he
misbehaved with Incharge in presence of
public. Observation has been made in
paragrah 3 of the order that by the
misconduct of the petitioner the faith of
public is losing in police and by the above
act of petitioner there is strong possibility
of encouragement of indiscipline in the
force. After noticing the above facts, the
Superintendent of Police held that he is
satisfied
that
it
is
not
reasonably
practicable to hold enquiry against the
petitioner. It was further observed that in
case petitioner remain in the force he may
repeat the incident in future and taking
advantage of he being in police he may
make efforts to save himself from his
deeds and in continuing the petitioner in
department there will be possibility of
increase of indiscipline in the employees.
No reason in the order has been recorded
as to why it is not reasonably practicable
to hold disciplinary enquiry against the
petitioner. It has been observed by the
apex court in Union of India vs. Tulsiram
Patel, (1985) 3 SCC 398 that disciplinary
authority is not expected to dispense with
a
disciplinary
enquiry
lightly
or
arbitrarily. In the counter affidavit which
has been filed by the respondents also
there is no reason given for not holding
disciplinary enquiry against the petitioner.
No facts have been mentioned in the order
or referred to on the basis of which
satisfaction
has
been
recorded
for
dispensing holding of disciplinary enquiry
against the petitioner. The observation
that in the event petitioner is allowed to
remain in the department there is
possibility of increase of indiscipline in
the department cannot be held to be
germane
for
dispensing
holding
of
disciplinary
enquiry.
The
appellate
authority while dismissing the appeal has
observed that there was possibility of
petitioner threatening the compliant and
witnesses was an observation which does
not
find
place
in
the
order
of
Superintendent of Police who invoked the
power under rule 8(2)(b) of the Rules.
Neither any reasons have been recorded in
the order of superintendent of police for
dispensing holding of disciplinary enquiry
nor other observations made in the order
to the effect that continuance of the
petitioner in the police force would have
encouraged indiscipline in the department
were relevant for dispensing holding of
disciplinary enquiry. The key words in
Rule 8 (2) (b) are "not reasonably
practicable".
The
Rules
contemplate
exercise of power under Rule 8 (2)(b) for
dispensing holding of disciplinary enquiry
when it is not reasonably practicable to
hold such enquiry. The reasons thus
which can satisfy the requirement of Rule
8 (2)(b) has to be referable to not
reasonably practicable to hold an enquiry.
No reasons have been given in the order
which can be said to fulfil the requirement
of not reasonably practicable to hold
enquiry. The statutory requirement of
exercising the power is absent in the
present case. As observed above, no
reasons have also been given in the
counter affidavit bringing on the record
the reasons on the basis of which such
satisfaction
was
recorded
by
Superintendent of Police, the court is at
last to find out the basis for invoking the
power under Rule 8(2)(b) of the Rules.

7. In above view of the facts, it is
clear that power has been exercised by
Superintendent of Police under Rule 8
(2)(b) contrary to the requirement as laid
down in Rule 8(2)(b). The order of
Superintendent of Police cannot be
sustained. The appellate order which
398 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
confirms the said order also cannot
survive
and
both
the
orders
are
consequently quashed. It is, however,
open
to
the
respondents
to
hold
disciplinary enquiry against the petitioner
in accordance with law.

8. The writ petition is disposed of
accordingly.
Petition Disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.6.2005

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 29555 of 2004

Anju Nagar

...Petitioner
Versus
Chairman Counseling Board- C.P.M.T.-
2004 Mahanideshak Chikitsa Shiksha
Evam Prashikshan, U.P., Lucknow and
others

 ...Respondents

Counsel for the Petitioner:
Sri Mool Behari Saxena
Sri P.N. Tripathi

Counsel for the Respondents:
Sri Mahendra Pratap
Sri Anurag Khanna
Sri R.P. Tiwari

Constitution
of
India,
Article
226-
Admission
in
M.B.B.S.-Petitioner
belonging to Physically handicapped lady
in Backward category- appeared and
qualified in C.P.M.T. examination 2004under open category such physically
handicapped
candidates
given
admission-the claim of petitioner denied
as the P.H. Quota under Backward
category
already
occupied
by
the
candidates possessing higher rank than
the petitioner- whether a candidate of
reserve category can be adjusted in open
category in accordance with merit ?
held-'yes'
fault
lies
with
the
Respondents who adopted illegal and
unsustainable
approach-
Necessary
direction issued to give admission in any
one of the state medical colleges by
forthwith.

Held- Para 17, 18 and 20

In such circumstances, this Court has no
hesitation to hold that the condition
mentioned in the brochure has been
misread by the respondents and the
right of the petitioner to be admitted in
the open category seats, reserved for
physically handicapped candidates, has
been illegally denied.

The purpose of reservation in favour of
scheduled caste/scheduled tribe and
other
backward
classes
category
students cannot be used as to toll to oust
the claim of candidates of physically
handicapped category who complete
with the open category belonging to said
category and have secured more merit
that the candidates, who have been
offered admission in the open category.

The fault for her being not admitted lies
with the respondents, who had adopted
an illegal and unsustainable approach to
the, matter and since the said academic
year has already commenced, it would
be fair to direct that the petitioner
should
be
given
admission
in
the
M.B.B.S. Course in any of the State
Medical colleges in the current academic
session.
Case law discussed:
2002 (7) SCC- 258
1992 supp. (3) SCC-217
2004 (23) AIC 96 SC

(Delivered by Hon'ble Arun Tandon, J.)

1. Heard Sri P.N. Tripathi on behalf
of the petitioner, Sri Mahendra Pratap on
behalf of respondent no. 1, Sri Anurag
Khanna on behalf of respondent no. 2, Sri