# Chintamani Upadhyaya v. State Of U.P & Ors

- **Citation:** (2016) 7 ILRA 91
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-22
- **Bench:** Pradeep Kumar Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chintamani-upadhyaya-v-state-of-u-p-ors-44084
- **Pages:** 8

## Text

7 All. Chintamani Upadhyaya Vs State Of U.P. & Ors.

91
13. The Tribunal has given its decision regarding seniority of Baghel by treating the date of
joining of Baghel at the Moradabad Division on 1 April 1981 for the purpose of seniority in the
Aligarh Division. The seniority list, on which reliance has been placed by Baghel, is Division-wise
and there is nothing on the record to indicate that a common seniority list is prepared. The Circular
dated 22 July 1967 also supports this view. In the transfer order of Baghel, it was also clearly stated
that on transfer, Baghel would be treated as junior-most Patrol in the Division. The Tribunal could
not have, therefore, directed for placement of Baghel in the seniority list above Rakesh Chandra
Srivastava by treating his appointment as 1 April 1981 in the Aligarh Division. When the seniority
is determined Division-wise, the U.P. Government Servants Seniority Rules, 1991 and the
Irrigation Department Patrols Service Rules, 1953 would not enure any benefit to Baghel. It is,
therefore, apparent that the Tribunal committed an illegality in holding that the seniority of Baghel
should be counted from 1 April 1981 in the Aligarh Division and he should be placed above
Rakesh Chandra Srivastava who is at Serial No.11.

14. The order dated 29 October 2010 passed by the Tribunal, therefore, cannot be
sustained. It is, accordingly, set aside. The writ petition is, accordingly, allowed and the claim
petition filed by Baghel before the Tribunal stands dismissed.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.07.2016

BEFORE

THE HON'BLE PRADEEP KUMAR SINGH BAGHEL, J.

Writ A No.- 52336 Of 2015

Chintamani Upadhyaya ...Petitioner
Versus
State Of U.P & Ors. ...Respondents

Counsel for Petitioner:
Rahul Jain

Counsel for Respondents:
C.S.C., Sri R.C. Dwivedi
Held

The impugned order dated 20.08.2015 approving the transfer of the sixth respondent is vitiated for
violation of principles of natural justice.
The petitioner was denied a fair opportunity of hearing because:
(i) His absence on the final date was for bona fide reasons and not deliberate;
(ii) Copies of documents submitted by the sixth respondent were not supplied to him despite a written request
dated 14.08.2015;
(iii) The authority failed to consider the detailed objections submitted by the petitioner.
92 INDIAN LAW REPORTS ALLAHABAD SERIES

Supply of material relied upon is a mandatory facet of audi alteram partem. Failure to furnish documents
before hearing amounts to a grave procedural illegality.
Even if the petitioner was absent on the last date, the authority was duty-bound to consider his written
objections. Non-consideration itself vitiates the order.
The argument that hearing before the High Court cures violation of natural justice was rejected. An order
passed in violation of natural justice is a nullity.
The impugned order dated 20.08.2015 was set aside and the matter remitted to the competent authority for
fresh decision after affording opportunity to all concerned parties.
The sixth respondent may continue in the institution, but his continuance shall abide by the fresh decision.

CASE LAW CITED

Ramadhar Shastri Adarsh Shastri v. Deputy Director of Education
Committee of Management Vaidik Higher Secondary Schools v. District Inspector of Schools
Committee of Management, Devatrya Adarsh Inter College v. Deputy Director of Education
Mohinder Singh Gill v. Chief Election Commissioner
A.R. Antulay v. R.S. Nayak
Rajasthan State Road Transport Corporation v. Bal Mukund Bairwa
Indira Nehru Gandhi v. Raj Narain
S.L. Kapoor v. Jagmohan
Ramadhar Shastri Adarsh Shastri v. Deputy Director of Education
Committee of Management Vaidik Higher Secondary Schools v. District Inspector of Schools
Committee of Management, Devatrya Adarsh Inter College v. Deputy Director of Education
Mohinder Singh Gill v. Chief Election Commissioner
Rajasthan State Road Transport Corporation v. Bal Mukund Bairwa
Indira Nehru Gandhi v. Raj Narain
S.L. Kapoor v. Jagmohan

(Delivered by Hon'ble Pradeep Kumar Singh Baghel, J.)

1. The petitioner is an officiating Principal of a recognized institution, namely, Shyam
Krishna Inter College. He has instituted this writ proceedings for issuing a writ of certiorari to
quash the order dated 20th August, 2015 passed by the second respondent, whereby petitioner's
representation has been rejected against the transfer of the sixth respondent and the order dated
24th August, 2015.

2. A brief reference to the factual aspects would suffice.

3. Shyam Krishna Inter College, Thawaipar, Gorakhpur (for short, the "Institution") is a
recognized intermediate college. It receives financial aid from the State Government. The
provisions of U.P. Intermediate Education Act, 1921 (U.P. Act No. II of 1921), the U.P. High
School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act,
1971 (U.P. Act No. 24 of 1971), and the U.P. Secondary Education Services Selection Board Act,
1982 (U.P. Act No. 5 of 1982) are applicable to the Institution.

4. It is stated that a vacancy arose in the office of Principal of the Institution on 30th June,
2015. The petitioner being the senior most lecturer in the Institution was appointed as an officiating
7 All. Chintamani Upadhyaya Vs State Of U.P. & Ors.

93
Principal. The District Inspector of Schools is stated to have approved his appointment. He is
functioning as officiating Principal since 13th July, 2015.

5. The Committee of Management has sent a requisition to the U.P. Secondary Education
Services Selection Board1 for the selection of a permanent Principal. It appears that in the
meantime the sixth respondent who was selected by the Board in the year 2010 as a Principal in Sri
Ganga Bux Kannodia Gandhi Inter College, Kaptanganj, Kushinagar, who later transferred to Neta
Subhash Krishi Sainik Inter College, Vinod Nagar, Maulaganj, Maharajganj, moved an application
on 26th September, 2014 for his transfer to Shyam Krishna Inter College, Thawaipar, Gorakhpur.

6. It is stated that the application of the sixth respondent for his transfer to Shyam Krishna
Inter College, Thawaipar, Gorakhpur2 was not considered in terms of Regulation-55 under
Chapter-III of the Regulations framed under the U.P. Act No. II of 1921 and he was illegally
transferred to the Institution where the Petitioner is working as Officiating Principal. The petitioner
had preferred a writ petition3 prior to the sixth respondent's application was considered. This Court
did not entertain his petition on the ground that it was a premature petition. His writ petition was
dismissed as such, leaving it open to the petitioner to move this Court at appropriate stage.

7. It is stated that the petitioner submitted a representation dated 08th June, 2015 along
with annexures and certified copy of the order of this Court dated 25th May, 2015. The second
respondent fixed 16.7.2015 for hearing of the matter. However, prior to the said date the petitioner
sent an application on 14.7.2015 requesting to fix some other date as his wife was not well. The
second respondent fixed 27.7.2015 for hearing the matter and an information was sent to the
petitioner vide letter dated 20.7.2015. The petitioner could not appear on 27.7.2015 on the ground
that the letter intimating him the date 27.7.2015 was received by him on 27.7.2015 itself. The
second respondent fixed 14.8.2015. On the said date the petitioner attended the office of the second
respondent but no hearing took place and he was informed that the Director has gone to Lucknow.
On the same day the petitioner submitted an application in his office, which was duly said to be
received by the concerned clerk, demanding copies of the documents submitted by the sixth
respondent. The said application is on the record as annexure-14 to the writ petition. When the
petitioner came back to Gorakhpur, he was informed that the next date is fixed as 18.8.2015 i.e.
only four days after the previous date. The petitioner got his reservation for Allahabad. In support
of the said statement, he has brought on record railway reservation tickets from Gorakhpur to
Allahabad and Allahabad to Gorakhpur, but the petitioner could not appear on the said date as he
suddenly fell ill and got admitted in the hospital on 17.8.2015 and remained under medical
treatment from 17.8.2015 to 19.8.2015. Thus, for the said reason he could not travel to Allahabad
to attend the hearing. On 18.8.2015 the second respondent proceeded to hear the matter ex parte
and passed the impugned order dated 20.8.2015.

8. It is also stated that on 14th August, 2015 the petitioner had moved an application that
copies of the documents submitted by the sixth respondent in the office of the second respondent,
may be supplied to him also.
94 INDIAN LAW REPORTS ALLAHABAD SERIES

9. I have heard learned counsel for the petitioner Sri Rahul Jain, learned Standing Counsel,
and Sri R.K. Ojha, learned Senior Advocate assisted by Sri R.C. Dwivedi, learned counsel for the
sixth respondent.

10. It is contended on behalf of the petitioner that the impugned order has been passed in
utter disregard to the principles of natural justice. It is stated that sixth respondent had fixed total
four dates, the petitioner had attended his office on previous dates but on 20.8.2015 the second
respondent in his absence passed the order impugned without hearing him. He further submitted
that the papers submitted by the sixth respondent were not supplied to him.

11. The next submission of learned counsel for the petitioner is that the sixth respondent is
on probation and in fact he was placed under suspension by the Management of Sri Ganga Bux
Kannodia Gandhi Inter College, Kushinagar (for short, the 'institution at Kushinagar') on 02nd
September, 2010. The suspension order was approved by the District Inspector of Schools4 on 27th
October, 2010. The said order was not challenged by the sixth respondent. He further submits that
after the disciplinary proceedings the Committee of Management of the said institution found that
the sixth respondent was guilty of misdemeanor. The charges in respect of financial misconduct
stand proved. The Committee of Management of the said institution accepted the enquiry report
and resolved to dismiss the sixth respondent.

12. It is further submitted that the resolution of the Committee of Management was
forwarded by the DIOS on 28th April, 2011 to the Board. When the said proposal for approval of
dismissal of the sixth respondent was pending consideration before the Board, an application was
moved by the Committee of Management of the institution at Kushinagar to send back the papers
with regard to dismissal of the sixth respondent on the ground that the Committee of Management
has resolved to withdraw the departmental proceedings.

13. The disciplinary committee of the Board vide resolution dated 27th November, 2012
has returned all the papers to the committee of management of the concerned institution. It is stated
that after the disciplinary proceedings were withdrawn, the sixth respondent has been transferred to
the present Institution. It has been further urged by the learned counsel for the petitioner that under
the amended regulation a three-member committee was constituted to consider the matter of
transfer. In the meeting, in which the committee has taken the decision, one of the members of the
committee, namely, the Secretary of the Board was not present hence two members have taken
decision with regard to transfer of the sixth respondent.

14. Learned Senior Advocate appearing for the sixth respondent Sri R.K.Ojha submits that
the sixth respondent is a regular Principal, therefore, in terms of Regulation-55 of Chapter-III of the
Regulations framed under the U.P. Act No. II of 1921 he can be transferred even if he is on
probation. He further submits that the Committee constituted in terms of Regulation-55 of ChapterIII had considered the matter of the petitioner and out of three members, two members were
present, therefore, the decision taken by the committee with regard to approval of transfer of the
7 All. Chintamani Upadhyaya Vs State Of U.P. & Ors.

95
sixth respondent, was legal and there was no illegality, if a third member was not present in the
meeting.

15. Lastly, Sri Ojha submits that even if there is a violation of principles of natural justice,
the petitioner has been heard by this Court, therefore, now the said illegality stands cured. He also
urged that the committee of management of the institution concerned is the appointing authority;
therefore, it was well within its jurisdiction to withdraw the entire disciplinary proceedings.
Accordingly the Committee of Management of the institution at Kushinagar made a request to the
Board to return the papers. The Board has rightly acceded to the request of the Committee of
Management of the said institution hence there is no illegality.

16. Learned Standing Counsel has adopted the submissions of Sri R.K. Ojha, learned
Senior Advocate.

17. I have considered the rival submissions and perused the record.

18. It is a common ground that the petitioner is an officiating Principal. His appointment
was approved by the DIOS. He had preferred a writ petition earlier when the transfer proceedings
of the sixth respondent were pending. His writ petition was disposed as pre-mature with liberty to
approach this Court at appropriate stage. After dismissal of his writ petition, he moved a
representation before the second respondent that he may be heard when the matter of the sixth
respondent is considered for transfer. On the three dates, mentioned above, the hearing could not
take place. On 14th August, 2015 when the petitioner attended the office of the second respondent
he was informed that the officer concerned is out of station. He submitted an application on 14th
August, 2015 which is on the record. In his application he made a prayer that the copy of the
documents submitted by the sixth respondent be supplied to him. It has not been denied that the no
order was passed on his application, neither document was supplied to him.

19. Indisputably, the office of the second respondent did not supply copy of the documents
submitted by the sixth respondent in spite of the fact that on 14.8.2016 the petitioner has demanded
the said documents by submitting an application on the said date. This Court in the case of
Ramadhar Shastri Adarsh Shastri and another v. Deputy Director of Education, IV Region,
Allahabad and others5 has considered the effect of non-supply of documents. The Court has
observed that reversal of such a process results in grave error of procedure which vitiates the order.
The Court held as under:

"2. ...Filing of documents should have preceded the hearing. The Deputy Director in
reversing the process committed grave error of procedure which vitiated his order."

20. A similar view has been taken by a Division Bench of this Court in the case of
Committee of Management Vaidik Higher Secondary Schools v. District Inspector of
Schools6. In the said case, the Court held that one of the facets of principles of natural justice is
that all the materials, on which the decision is based, should be apprised to the effected party and
96 INDIAN LAW REPORTS ALLAHABAD SERIES

he must be given opportunity to adduce evidence or material in his favour. If an action is taken
against a person on the basis of certain material or evidence without bringing the same to the notice
of such person is violative of procedural safeguard. The said decision has been followed by this
Court in the case of Committee of Management, Devatrya Adarsh Inter College, Bulandshahr
and another v. Deputy Director of Education and others7.

21. I have also seen the objections filed by the petitioner before the second respondent,
which is on the record as annexure-11 to the writ petition. The second respondent while passing the
order of transfer of the sixth respondent has not adverted to various points raised by the petitioner
in his objections.

22. Even if the petitioner was not present on the date when the matter was heard by the
second respondent, he ought to have considered various objections raised by the petitioner. Not
considering those objections, itself, vitiates the impugned order as one of the facets of natural
justice is that the point raised by a person against whom the order is passed, be considered even if
the personal hearing is not necessary.

23. In view of the facts mentioned above, I find that the impugned order stands vitiated and
it is in violation of principles of natural justice on the following grounds:

(i) the petitioner was prevented from sufficient ground to appear before the second
respondent. There is no material on record that he deliberately adopted dilatory tactics, on the
contrary, it appears that his absence was for bonafide reasons;

(ii) the material relied upon by the second respondent in his order, was not supplied
to the petitioner;

(iii) the second respondent has not adverted to the detailed objections filed by the
petitioner.

24. Coming to the submissions made by learned Senior Advocate that there are exceptions
on natural justice and since this Court has heard the petitioner, as such there is no need to remit the
matter to the authority concerned as the principles of natural justice have now been complied with,
I am unable to subscribe the submissions made by learned Senior Counsel.

25. The natural justice is a requirement of fair play in action in a civilized justice system
and good governance. One of its purpose is prevention of miscarriage of justice. Over the times the
thin line between the administrative and quasi-judicial authorities has stand obliterated by a catena
of decisions of the Supreme Court. The principles of natural justice have now an important place in
modern administrative law. The issuance of natural justice is "fair play in action". In the words of
Justice Krishna Iyer in the case of Mohinder Singh Gill and another v. The Chief Election
Commissioner, New Delhi and others8 it is not a bull in china shop nor it is a bee in one's bonnet.
7 All. Chintamani Upadhyaya Vs State Of U.P. & Ors.

97
It's essence is good conscience in a given situation; nothing more - but nothing less. Relevant part
of the said judgement reads thus:

"48. ...It is not a bull in a china shop, nor a bee in one's bonnet. Its essence is good
conscience in a given situation; nothing more ---but nothing less. The 'exceptions' to the rules of
natural justice are a misnomer or rather are but a shorthand form of expressing the idea that in
those exclusionary cases nothing unfair can be inferred by not affording an opportunity to present
or meet a case. Text-book excerpts and ratios from rulings can be heaped, but they all converge to
the same point that audi alteram partem is the justice of the law, without, of course, making law
lifeless, absurd, stultifying, self-defeating or plainly contrary to the commonsense of the situation."

26. The Supreme Court has quoted with approval the judgement of A.R. Antulay v. R.S.
Nayak and another9 in the case of Rajasthan State Road Transport Corporation and another
v. Bal Mukund Bairwa (2)10, relevant part of which reads as under:

"35. Any order passed in violation of the principles of natural justice save and
except certain contingencies of cases, would be a nullity. In A.R. Antulay (supra), this Court held:
(SCC p. 660, para 55)

"55. ...No prejudice need be proved for enforcing the fundamental rights. Violation
of a fundamental right itself renders the impugned action void. So also the violation of the
principles of natural justice renders the act a nullity.""

27. The Supreme Court in the case of Smt. Indira Nehru Gandhi v. Shri Raj Narain11,
has held that if an authority/ body is given power without any specific provision that rules of
natural justice shall apply, the principle of natural justice would apply. Similar view was taken by
the Supreme Court in S.L. Kapoor v. Jagmohan and others12.

28. Having due regard to the facts of the case, in my view, the impugned order dated
20.8.2015 is illegal for the reasons stated above and stands vitiated. It is accordingly set aside.
Parties are at liberty to raise all other issues before the authority concerned/ the second respondent
who shall decide the matter after furnishing opportunity to the petitioner and the sixth respondent
as well as the Committee of Management of the Institution. The said exercise shall be completed
expeditiously, not later than three months from the date of communication of this order.

29. The sixth respondent has joined the Institution and is working for the last one year. In
view of the said facts, in my view he may continue but his continuance shall abide by the result of
the fresh order to be passed by the second respondent.

30. The writ petition is, accordingly, allowed.

31. No order as to costs.
98 INDIAN LAW REPORTS ALLAHABAD SERIES

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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.07.2016

BEFORE

THE HON'BLE SUDHIR KUMAR SAXENA, J.

Election Petition No.- 1 Of 2012

Ajay Kumar ...Petitioner
Versus
Sri Bhim Prasad Sonkar ...Respondent

Counsel for Petitioner:
Subhash Vidyarthi

Counsel for Respondent:
H S Jain, Manish Mathur, Sanjay Kumar

This Election Petition filed under Section 80 of the Representation of People Act 1951 (hereinafter referred to
as 'the Act') challenges the election of Sri Bhim Prasad Sonkar (respondent) elected as Member to the
Legislative Assembly from Alapur (279) constituency of District Ambedkar Nagar. No prayer for declaring
petitioner- Ajay Kumar as elected Member of the Legislative Assembly has been made.

Briefly stated petitioner's case is that general elections to the Legislative Assembly were notified in the year
2012. Petitioner belongs to Gond caste, which is a Scheduled Castes and armed with a caste certificate, issued
by Tehsildar, Akbarpur, Faizabad, on 27.09.1979, he had successfully contested the election of Pradhan, Gram
Panchayat, Sugauti in the year 2010. Petitioner wanted to contest the election of the legislative assembly as
such, he requested Returning Officer/ADM (Finance) to provide him nomination form which was not issued,
asking petitioner to produce his caste certificate, issued after the year 1985, which demand was wholly
unjustified.

Contention of Sri Subhash Vidyarthi, counsel for petitioner is that once he is able to show procedural
irregularity or infraction of instructions issued by the Election Commission, it has to be assumed that
nomination paper has been improperly rejected, and therefore, nothing more is required to be seen while
submission of Sri H.S. Jain, learned counsel is that on merits also High Court has to see whether petitioner
had a right to contest.

If a person is not qualified to contest the election and there is some procedural error in rejecting the
nomination paper, holding that order is erroneous, same would not remove the disqualification and High Court
has to decide whether person is eligible to contest the election or not. High Court, being original

Court in the election matters, has to give its decision on merits as well on impropriety in rejection of
nomination paper. Order has to be correct on both counts procedural as well as substantive. On merits also
petitioner has to satisfy that he was qualified to contest. Court is of the view that in this election petition not
only decision making process adopted by Returning Officer but also genuineness of petitioner's claim to
contest the election has to be examined.