# C/M Jan Samaj Ucchchatar Madhyamik Viddyapeeth Thru Manager v. Suresh Kumar and others

- **Citation:** (2012) 2 ILRA 649
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-06-12
- **Bench:** Uma Nath Singh, Virendra Kumar Dixit
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-jan-samaj-ucchchatar-madhyamik-viddyapeeth-thru-manager-v-suresh-kumar-and-42245
- **Pages:** 5

## Headnote

U.P. Intermediate Education Act, 1921Chapter III Regulation 31 to 45-framed
under Section 16-G-termination of class 4th
employee-without
following
procedure
contained in statutory provision-without
following principle of Natural Justicetermination order rightly quashed by
Learned Single Judge-appeal dismissed.

Held: Para 17

We are of the considered view that the
impugned dismissal order from service has
been passed without affording reasonable
opportunity
of
hearing
and
without
following the procedure and against the
relevant regulations 31 to 45 of Chapter
III framed under Scheme 16-G of the U.P.
Intermediate Education Act, 1921, and
thus in violation of statutory provisions as
well as in gross violation of Principle of
natural justice. In this regard, the view
expressed by learned Single Judge does
not call for any interference.
Case law discussed:
2010 (1) ALJ 630

## Text

2 All] C/M Jan Samaj Ucchchatar Madhyamik Viddyapeeth V. Suresh Kumar and others
649
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.06.2012

BEFORE
THE HON'BLE UMA NATH SINGH, J.
THE HON'BLE VIRENDRA KUMAR DIXIT, J.

Special Appeal No. - 63 of 2012

C/M Jan Samaj Ucchchatar Madhyamik
Viddyapeeth Thru Manager ...Petitioner
Versus
Suresh
Kumar
and
others
(Revpd
247/2011) S/S

 ...Respondent

Counsel for the Petitioner:
Sri Chandra Bhushan Pandey
Sri Jai Narain Pandey

Counsel for the Respondents:
C S C
Sri Manish Kumar

U.P. Intermediate Education Act, 1921Chapter III Regulation 31 to 45-framed
under Section 16-G-termination of class 4th
employee-without
following
procedure
contained in statutory provision-without
following principle of Natural Justicetermination order rightly quashed by
Learned Single Judge-appeal dismissed.

Held: Para 17

We are of the considered view that the
impugned dismissal order from service has
been passed without affording reasonable
opportunity
of
hearing
and
without
following the procedure and against the
relevant regulations 31 to 45 of Chapter
III framed under Scheme 16-G of the U.P.
Intermediate Education Act, 1921, and
thus in violation of statutory provisions as
well as in gross violation of Principle of
natural justice. In this regard, the view
expressed by learned Single Judge does
not call for any interference.
Case law discussed:
2010 (1) ALJ 630

(Delivered by Hon'ble V.K. Dixit, J.)

1. This Special Appeal is arising out
of
the
Judgement
&
Order
dated
11.01.2012 passed by learned Single
Judge by which the Review Application
(Defective) No.247 of 2011 (Committee
of Management, Jan Sansthan Uchchatar
Madhyamic Vidyapeeth Inter College,
through its Manager and another Vs.
Survesh Kumar & Others) has been
dismissed and Judgment & order dated
04.07.2011 passed by learned Single
Judge whereby the Writ Petition No.649
(S/S) of 2009 (Suresh Kumar Vs. State of
U.P. & others) has been allowed and the
impugned
order
dated
09.07.2008
dismissing the petitioner from service
passed by Principal, Sansthan Uchchatar
Madhyamic Vidyapeeth Inter College,
Digambar pur, Mubarakganj, Faizabad
(Appellant No.2) and order of District
Inspector of Schools, Faizabad dated
05.12.2008,
granting
the
subsequent
approval to the impugned order dated
09.07.2008 under the provisions of
Regulation 31, Chapter-III of the U.P.
Intermediate Education Act, 1921 have
been quashed.

2. Heard Sri Chandra Bhusahn
Pandey, learned Counsel for appellants,
learned Chief Standing Counsel and Sri
Manish Kumar for contesting respondent
no.1 and perused the impugned judgment
and
orders
dated
04.07.2011
and
11.01.2012 passed by the learned single
Judge giving rise to the present appeal,
the grounds taken in the memo of appeal
and the documents filed along with it.

3. Submission of the learned counsel
for the appellants is that the learned
Single Judge allowed the writ petition and
rejected the review application without
650 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
considering the facts and law in its
entirety and thus the order of learned
Single Judge is not sustainable in the eyes
of law. It is further submitted that under
the U.P. Intermediate Education Act,
there is absolutely no requirement for
conducting
full-fledged
departmental
inquiry in a case where the delinquent
employee has absconded and is not
participating in the enquiry deliberately
despite reasonable and genuine efforts on
part of the employer to make him
participate. Further on account of noncooperation on the part of the private
respondent, there was no occasion for the
appellants to have conducted a fullfledged inquiry in the matter. That the
entire scheme of the regulations, in so far
as it relates to Class-IV employees makes
it abundantly clear that prior approval is
not mandatory before terminating the
service
where
subsequently,
the
competent
authority
has
accorded
approval to the dismissal order. In support
of such contention, he has relied upon a
Full Bench Judgment of this Court passed
in the case of Rishikesh Lal Srivastava
Versus State of U.P. & Others reported in
2010 (1) ALJ 630.

4. On the other hand, learned
counsel
for
contesting
respondent,
refuting the submission of learned counsel
for the appellants, contended that the
judgment and order dated 04.07.2011
under challenge passed by learned Single
Judge has not been passed merely on the
point that there was no prior approval
from the District Inspector of Schools
(D.I.O.S.) but also on the ground that the
impugned
dismissal
order
dated
09.07.2008 has been passed without
holding any enquiry and without serving
any charge-sheet in utter violation of
Principles of natural justice is wholly
arbitrary and illegal and also against the
provisions of Sections 31, 35, 36 and 37
of Chapter III and Section 16 (G) of the
U.P. Intermediate Education Act, 1921.

5.

We
have
considered
the
arguments aforesaid and we find that in
order to appreciate the rival contentions
we have to consider only the following
two points:

(i)
whether
for
awarding
a
punishment in respect of a Class IV
employee prior approval of D.I.O.S. is
essential?

(ii) Whether the impugned order
dated 09.07.2008 for dismissal has been
passed without providing reasonable
opportunity of hearing and thus in
violation of the principles of natural
justice?

6. Learned Single Judge while
dealing both the issues has made the
following observation:

"on due consideration of facts and
circumstances of the present case and the
legal position, this Court comes to the
conclusion that the impugned order has
been passed in violation of principles of
natural justice as well as against the
provisions of Regulation of 31, 35, 36 and
37."

7. So far the first point is concerned,
in the present case undisputedly the
impugned order of the District Inspector
of School, Faizabad, dated 05.12.2008
granting the subsequent approval to the
impugned order dated 09.07.2008 passed
by the Principal of the institution
dismissing
the
petitioner/contesting
respondent from the service. Learned
2 All] C/M Jan Samaj Ucchchatar Madhyamik Viddyapeeth V. Suresh Kumar and others
651
Single Judge quashed the impugned order
of District Inspector of School, Faizabad
dated 05.12.2008 granting the subsequent
approval to the impugned order of
dismissal.

8. The disciplinary proceedings
against a Class IV employee of the
institution is in the nature of domestic
enquiry. In paras 50, 58 and 65 of the Full
Bench judgment of this Court passed in
the case of Rishikesh Lal Srivastava
(supra), the observations made in paras
50, 58 and 64 of the judgment, which on
reproduction would read as:-

"50-In our opinion, the aforesaid
principle squarely applies in the present
context and for the reasons given
hereinabove and hereinafter, we would
interpret
Regulation
31
read
with
Regulation 100 to mean that the sanction
of prior approval in respect of the
termination of a Class-IV employee would
stand excluded.

58-There is yet another principle,
which deserves to be taken notice of. If
the sanction is required prior to giving
effect to a punishment in respect of a
Class-IV employee, then the District
Inspector of Schools would hear an
appeal against his own approval. This, to
our mind, would bring about an anomaly,
which may extend to an absurdity. The
same authority cannot be presumed to
have been conferred with a power to hear
an appeal against its own approval. This
would be 44 rendering nugatory the
hierarchy provided for in Regulation 31
itself, where an appeal is provided to the
Committee of Management against the
order of disciplinary authority and a
further appeal to the Inspector of Schools.
The purpose, therefore, is clear enough
and it does not suffer from any ambiguity
which may require us to render an
interpretation, which otherwise would
bring about an incongruous result. As
observed
above,
the
Rules
of
Interpretation as enunciated by the Apex
Court do not permit us to give an
interpretation, which would obviously
result in a clear anomaly as pointed out
hereinabove. This we adopt, as the law
permits us to apply 'the intention seeking'
Rule of Interpretation to illustrate the
anomaly that may result in the event we
accept the proposition that a prior
sanction is required.

64-Having laid threadbare the first
principles on which we have interpreted
the provisions, we have no hesitation in
coming to the conclusion that there is no
requirement under the Regulations for a
prior sanction or approval of the
Inspector of Schools in respect of order of
termination of Class-IV employees."

9. In the aforesaid full Bench
judgment of this Court in the case of
Rishikesh Lal Srivastava (supra) it has
been held that for awarding a punishment
as
elaborated
under
Regulation
31
Chapter III of the U.P. Intermediate
Education Act, 1921 to a Class IV
employee of the institution recognized
under the aforesaid Act, no prior approval
or sanction from the Inspector of School
is required.

10. The decision in the case of
Rishikesh Lal Srivastava (supra) can also
be usefully followed and applied to the
case in hand.

11. In view of the above, we are
respectfully unable to agree with the view
of learned Single Judge that prior
652 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
approval of D.I.O.S. was necessary before
passing the impugned dismissal order
dated 09.07.2008 we are of the considered
view that the scheme of the Regulations
31 to 45 of Chapter III of the U.P.
Intermediate Education Act, 1921 does
not provide that prior approval or sanction
of D.I.O.S. is essentially required for
awarding punishment of removal or
terminating of a Class IV employee of the
institution recognized under the aforesaid
Act.

12. We shall now deal with the
question as to whether the impugned
order dated 09.07.2008 for dismissal has
been passed without providing reasonable
opportunity of hearing and thus in
violation of the principles of natural
justice?

13. Learned counsel for appellants
has
submitted
that
on
account
of
deliberate non-cooperation on the part of
the Respondent No.1, there was no
occasion for the appellants to have
conducted a full fledged enquiry in the
matter. In fact, he was an absconder and
under Regulation 36 (2) of the Act, there
was
absolutely
no
requirement
of
affording any opportunity of hearing to
such an employee before passing the
impugned
dismissal
order
dated
09.08.2008. It has further been pleaded
that
under
the
U.P.
Intermediate
Education Act, 1921, there is absolutely
no requirement for conducting full
fledged departmental enquiry in a case
where the delinquent employee has
absconded and is not participating in the
enquiry deliberately despite reasonable &
genuine attempts on part of the employer
to make him participate.

14. On the other hand, learned
counsel for the contesting Respondent
No.1 submitted that prior to dismissal, the
Respondent
No.1
had
neither
been
suspended nor any charge-sheet was
served and also no information about
departmental enquiry was ever given to
him and also the impugned dismissal
order has been passed without giving him
any opportunity to be heard in violation of
principle of natural justice.

15. We have given our thoughtful
consideration to the arguments advanced
by the learned counsel appearing on either
side with reference to the pleadings,
records, annexures and the case laws.

16. Undisputedly the contesting
Respondent No.1 has not participated in
the departmental enquiry proceedings. In
view of the facts and circumstances of the
case and rival contention of learned
counsel for the parties, we do not find any
substance in the arguments of the learned
counsel for appellants that the contesting
Respondent No.1 has absconded and on
account of his deliberate co-operation full
fledged enquiry in the matter was not
required.

17. We are of the considered view
that the impugned dismissal order from
service has been passed without affording
reasonable opportunity of hearing and
without following the procedure and
against the relevant regulations 31 to 45
of Chapter III framed under Scheme 16-G
of the U.P. Intermediate Education Act,
1921, and thus in violation of statutory
provisions as well as in gross violation of
Principle of natural justice. In this regard,
the view expressed by learned Single
Judge does not call for any interference.
2 All] Utsav Chaturvedi V. The State of U.P. and others
653

18. In the result, we do not find any
illegality or infirmity in the order. The
appeal
being
devoid
of
merit,
is,
therefore, dismissed.

19. No order is passed as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.06.2012

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE DR. SATISH CHANDRA, J.

Service Bench No. - 450 of 2012

Utsav Chaturvedi

 ...Petitioner
Versus
The State of U.P Thru Principal Secy
Ministry of Law and others ...Respondents

Counsel for the Petitioner:
Dr. L.P Misra
Sri Deepanshu Dass

Counsel for the Respondent:
C.S.C
Sri Manish Kumar

U.P. Higher Judicial Services Rules1975,
readwith Constitution of India, Article
226, 233, 233 (2)-Petitioner seeking
direction to declare the provision of Rule
13(2)
,
17
(2)
ultra-vires-as
the
petitioner possess more than 7 years
practice prior to appointment of P.C.S.
(J)
M.P.-word
used
'already'
under
Section 233 (2) denotes person must be
a
practicing
Advocate-after
joining
Judicial Service-petitioner ceased to be a
Advocate-even otherwise in view of
Section 40 of Advocates Act-petitioner
ceased to be an Advocate-held-Rules are
not ultra-vires.

Held: Para 20 and 21

The case of Shankar K. Mandal (supra)
does not relate to situation envisage
under Article 233 of the Constitution of
India and considered by the Hon'ble
Supreme
Court(supra).
Recruitment
process
with
regard
to
ordinary
Government service and with regard to
judicial services may be different. So far
as
Higher
Judicial
Services
are
concerned,
it
is
governed
by
the
condition contained in Article 233 of the
Constitution of India. Article 233 has
been interpreted by the Hon'ble Supreme
Court in catena of judgments, out of
which aforesaid two judgments referred
herein above would reveal that on the
cut of date or at the time of recruitment,
the candidate must be the member of
Bar or a practicing advocate. In case he
has requisite experience, but he is not
the
member
of
Bar
or
practicing
advocate then keeping letter and spirit
of Article 233 of the Constitution of
India, he shall not be entitled to appear
in the Higher Judicial Services.

So far as the validity of impugned Rules
are concerned, they do not seem to be
ultra-vires to the Constitution. In case,
the Rules in question are considered in
the light of aforesaid judgment of the
Hon'ble Supreme Court, it appears to be
intra-vires regulating the condition of
recruitment.
Case law discussed:
(1991) 1 Supreme Court Cases 330; AIR 1985
SC 308; (2003) 9 SCC 519

(Delivered by Hon'ble Devi Prasad Singh, J.)

1. Heard Sri Sandeep Dixit, learned
counsel appearing for the petitioner as well
as learned Chief Standing Counsel.

Petitioner, who is a member of
provincial Judicial Services of State of
Madhya Pradesh had applied for U.P.
Higher Judicial Services Exam, 2012 in
pursuance to the impugned advertisement as
contained in Annexure No. 1. The instant
writ petition has been preferred challenging
Rule 13(2) and 17(2) of the U.P. Higher