# Dashrath Singh Yadav v. The Central Administrative Tribunal, Allahabad & Ors

- **Citation:** (2020) 9 ILRA 138
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-08-24
- **Case number:** Writ A No. 53897 of 2017
- **Bench:** B. Amit Sthalekar, Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dashrath-singh-yadav-v-the-central-administrative-tribunal-allahabad-ors-44361
- **Pages:** 6

## Headnote

A. Service Law - Departmental Enquiry -
Penalty - P & T Manual Volume - III: Rule
129; Central Civil Services (Classification,
Control
and
Appeal)
Rules,
1965;
Education Code: Article 80.

Jurisdiction of Tribunal - Tribunal cannot
sit in review over the previous order of the
Tribunal while deciding a fresh Original
Application - Tribunal in a previous order
dated 28.08.2009 had quashed and set aside
order dated 22.4.1991 (penalty order of
disciplinary authority, by which the pay was
reduced by four stages) as well as the appellate
order dated 18.01.1996 and remitted the matter
to the appellate authority to decide the appeal.
Appellate authority rejected the appeal and
upheld the penalty order vide order dated
26.11.2009. (Para 6-8)

In the order impugned dated 13.09.2017, the
Tribunal held that the previous Tribunal while
passing the order dated 28.08.2009 had never
questioned
the
order
of
the
disciplinary
authority dated 22.04.1991 and was very clear
in its mind that it was only quashing the
appellate order and had only remitted the
matter back to the appellate authority to
reconsider the appeal of the applicant. The
9 All. Dashrath Singh Yadav Vs. The Central Administrative Tribunal, Allahabad & Ors.
139
Tribunal further held that the petitioner also
never challenged the proceedings before the
appellate authority and therefore, it was not
open for him to raise this issue before the
Tribunal. (Para 11)

The Court held that it was not permissible
for Tribunal to sit in review over the
previous order of the Tribunal dated
28.8.2009, while deciding a fresh Original
Application and there was no review pending
before the Tribunal against the previous order
dated 28.8.2009. Once the Tribunal in the
previous
proceedings,
vide
order
dated
28.8.2009 had quashed the penalty order dated
22.4.1991, nothing remained to be remitted to
the appellate authority as any pending appeal
before the appellate authority would have as a
consequence become infructuous once the
punishment order itself stood quashed. Order of
appellate authority, which was otherwise illegal
and a nullity, would not become valid, if
petitioner did not challenge the proceedings
before the appellate authority. (Para 12, 13)

B. Applicability of the provisions of Rule
129 of the P & T Manual, Volume-III to
the proceedings before Kendriya Vidyalaya
Sangthan - The said rule has no application to
Kendriya Vidyalaya Sangthan, which is governed
by its own rules and regulations and the Central
Civil Services (Classification, Control and Appeal)
Rules, 1965. (Para 13)

The Court finds it unjustified to remit the matter
back to the disciplinary authority as the matter
has been travelling in and out of the portals of
the Tribunal and of this Court since 1991 and
the petitioner who is now 64 years of age has
also
retired
from
service.
Order
dated
13.09.2017 has been quashed being wholly
illegal and without jurisdiction and the petitioner
who has retired and cannot be reinstated in
service, is held entitled for regularization of the
period he was under suspension with all
consequential benefits. (Para 14, 16)

Writ Petition allowed. (E-4)

Present petition challenges order dated
13.09.2017,
passed
by
the
Central
Administrative Tribunal, Allahabad.

## Text

138 INDIAN LAW REPORTS ALLAHABAD SERIES
discrimination. The classification cannot be
done on the irrational basis and when
respondents are themselves counting period
spent in such service, it would be highly
discriminatory not to count the service on
the basis of flimsy classification. The rider
put on that work-charged service should
have preceded by temporary capacity is
discriminatory and irrational and creates
an impermissible classification.

33. As it would be unjust, illegal
and impermissible to make aforesaid
classification to make the Rule 3(8) valid
and non discriminatory, we have to read
down the provisions of Rule 3(8) and hold
that services rendered even prior to
regularisation in the capacity of workcharged employees, contingency paid fund
employees
or
non-
pensionable
establishment
shall
also
be
counted
towards the qualifying service even if such
service is not preceded by temporary or
regular appointment in a pensionable
establishment.

34. In view of the note appended
to Rule 3(8), which we have read down, the
provision contained in Regulation 370 of
the Civil Services Regulations has to be
struck down as also the instructions
contained in Para 669 of the Financial
Handbook."

16. Therefore, bound by Division
Bench judgments of this Court, noticed
above, I have no option but to hold that
services rendered by petitioners on Fixed
Pay as Class IV employee will not be
treated as qualifying service, hence, relief
prayed by petitioners, cannot be granted.

17. Writ petition lacks merit. It is
dismissed accordingly. Interim order, if
any, stands vacated.
----------
(2020)09ILR A138
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.08.2018

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.
THE HON'BLE JAYANT BANERJI, J.

Writ A No. 53897 of 2017

Dashrath Singh Yadav ...Petitioner
Versus
The
Central
Administrative
Tribunal,
Allahabad & Ors. ...Respondents

Counsel for the Petitioner:
In Person

Counsel for the Respondents:
Sri Devendra Pratap Singh

A. Service Law - Departmental Enquiry -
Penalty - P & T Manual Volume - III: Rule
129; Central Civil Services (Classification,
Control
and
Appeal)
Rules,
1965;
Education Code: Article 80.

Jurisdiction of Tribunal - Tribunal cannot
sit in review over the previous order of the
Tribunal while deciding a fresh Original
Application - Tribunal in a previous order
dated 28.08.2009 had quashed and set aside
order dated 22.4.1991 (penalty order of
disciplinary authority, by which the pay was
reduced by four stages) as well as the appellate
order dated 18.01.1996 and remitted the matter
to the appellate authority to decide the appeal.
Appellate authority rejected the appeal and
upheld the penalty order vide order dated
26.11.2009. (Para 6-8)

In the order impugned dated 13.09.2017, the
Tribunal held that the previous Tribunal while
passing the order dated 28.08.2009 had never
questioned
the
order
of
the
disciplinary
authority dated 22.04.1991 and was very clear
in its mind that it was only quashing the
appellate order and had only remitted the
matter back to the appellate authority to
reconsider the appeal of the applicant. The
9 All. Dashrath Singh Yadav Vs. The Central Administrative Tribunal, Allahabad & Ors.
139
Tribunal further held that the petitioner also
never challenged the proceedings before the
appellate authority and therefore, it was not
open for him to raise this issue before the
Tribunal. (Para 11)

The Court held that it was not permissible
for Tribunal to sit in review over the
previous order of the Tribunal dated
28.8.2009, while deciding a fresh Original
Application and there was no review pending
before the Tribunal against the previous order
dated 28.8.2009. Once the Tribunal in the
previous
proceedings,
vide
order
dated
28.8.2009 had quashed the penalty order dated
22.4.1991, nothing remained to be remitted to
the appellate authority as any pending appeal
before the appellate authority would have as a
consequence become infructuous once the
punishment order itself stood quashed. Order of
appellate authority, which was otherwise illegal
and a nullity, would not become valid, if
petitioner did not challenge the proceedings
before the appellate authority. (Para 12, 13)

B. Applicability of the provisions of Rule
129 of the P & T Manual, Volume-III to
the proceedings before Kendriya Vidyalaya
Sangthan - The said rule has no application to
Kendriya Vidyalaya Sangthan, which is governed
by its own rules and regulations and the Central
Civil Services (Classification, Control and Appeal)
Rules, 1965. (Para 13)

The Court finds it unjustified to remit the matter
back to the disciplinary authority as the matter
has been travelling in and out of the portals of
the Tribunal and of this Court since 1991 and
the petitioner who is now 64 years of age has
also
retired
from
service.
Order
dated
13.09.2017 has been quashed being wholly
illegal and without jurisdiction and the petitioner
who has retired and cannot be reinstated in
service, is held entitled for regularization of the
period he was under suspension with all
consequential benefits. (Para 14, 16)

Writ Petition allowed. (E-4)

Present petition challenges order dated
13.09.2017,
passed
by
the
Central
Administrative Tribunal, Allahabad.
(Delivered by Hon'ble B. Amit Sthalekar, J.)

1. The petitioner is appearing in
person and is seeking quashing of the order
dated 13.9.2017 passed by the Central
Administrative Tribunal, Allahabad with a
consequential direction to the respondents
to pay him arrears of salary for the period
he
was
under
suspension
alongwith
dearness allowance at the current rate and
also interest and also to enhance the
pensionary benefits including fixation of
amount
of
pension,
gratuity,
leave
encashment etc. by treating the period of
suspension
as
treated
on
duty
and
increments for the same.

2. Briefly stated the case of the
petitioner is that when he was posted as
Librarian in the Kendriya Vidyalaya,
Thawe, Gopalganj he was transferred to
Kendriya Vidyalaya, Phulpur, Allahabad
and was again transferred to Kendriya
Vidyalaya, IDPL, Virbhadra, Rishikesh. On
30.08.1988 he was placed under suspension
but was allowed to report to the office
everyday and sign the attendance register. It
is stated that when the departmental
enquiry was not being initiated he filed
Writ Petition No.11763 of 1989 seeking
quashing of the order of suspension. It is
also stated that during the pendency of the
writ petition an order was passed by the
Assistant
Commissioner,
Kendriya
Vidyalaya
Sangathan,
Lucknow
on
22.04.1991 by which the pay of the
petitioner was reduced by four stages from
Rs.1,750/- to Rs.1,560/- with cumulative
effect for a period of two years affecting his
future increment of pay also on the basis of
an enquiry report dated 23.04.1990. The
petitioner filed departmental appeal which
was not decided. Thereafter he filed Writ
Petition No.33295 of 1995 and the same
was disposed of by the High Court by order
140 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 22.11.1995 with a direction to the
respondents to decide the petitioner's
departmental appeal. It is stated that the
appellate authority finally passed an order
dated 22.11.1995 deciding the petitioner's
appeal. The petitioner then filed Writ
Petition No.14175 of 1996. The writ
petition was transferred to the Uttrakhand
High Court, Nainital and again transferred
back
to
the
Central
Administrative
Tribunal, Allahabad Bench and numbered
as T.A. No.02 of 2005. The Tribunal by its
judgment and order dated 28.08.2009
passed in the T.A. No.02 of 2005 quashed
the
order
dated
22.04.1991
of
the
disciplinary authority as well as the
appellate order dated 18.01.1996 and
remitted the matter to the appellate
authority to reconsider the appeal. In
pursuance of the direction of the Tribunal
the appellate authority reconsidered the
appeal of the petitioner and by order dated
26.11.2009 rejected the appeal upholding
the penalty of reduction of pay by four
stages in terms of the previous penalty
order dated 22.04.1991.

3. The case of the petitioner before
the Tribunal was that once the Tribunal
while deciding T.A. No.02 of 2005 had by
its judgment and order dated 28.08.2009
quashed
the
penalty
order
of
the
disciplinary authority dated 22.04.1991
nothing remained to be decided in the
departmental appeal and therefore, the
order of the appellate authority dated
26.11.2009 was a nullity. Reference was
made to Rule 129 of the P & T Manual
Volume-III,
which
provides
that
the
appellate order replaces the punishment
order, therefore, if the appellate order is set
aside
for
procedural
defects,
the
punishment order will also simultaneously
stand quashed and in such a case, it would
be
necessary
to
initiate
de
novo
proceedings against the concerned officer.
The extract of the instructions and Rule 128
of the P & T Manual, Volume-III has been
filed as Annexure-3 to the writ petition.

4. The Tribunal has, however held that
while quashing the appellate order dated
18.01.1996 the previous bench of the
Tribunal had also quashed the order dated
22.04.1991 of which the petitioner was trying
to take advantage whereas the Tribunal had in
fact only remitted the matter back to the
appellate authority to reconsider the appeal of
the petitioner within a period of three months.
The Tribunal also held that the previous
bench of the Tribunal while deciding T.A.
No.02 of 2005 was very clear in its mind that
it was quashing the appellate authority order
which was a cryptic and non-speaking order
and therefore, the Tribunal was amply
justified in quashing the appellate order and
to direct the appellate authority to reconsider
the appeal of the petitioner and therefore,
there was no occasion for the Tribunal to
quash the order of the disciplinary authority
and even if it has done so it is clear that the
Tribunal only intended to quash the appellate
authority order. So far as the applicability of
Rule 129 of the P & T Manual, Volume-III is
concerned, the Tribunal held that the same is
not
applicable
in
Kendriya
Vidyalaya
Sangthan as Kendriya Vidyalaya Sangthan is
governed by its own rules and regulations and
the Central Civil Services (Classification,
Control and Appeal) Rules, 1965 are
applicable in the case of the employees of
Kendriya Vidyalaya Sangthan by virtue of
provisions of Article 80 of the Education
Code. The Tribunal accordingly dismissed
the claim petition/original application filed by
the petitioner.

5. We have heard the petitioner in
person and Shri D.P. Singh, learned counsel
for the respondents
9 All. Dashrath Singh Yadav Vs. The Central Administrative Tribunal, Allahabad & Ors.
141

6. The petitioner has reiterated his
case before the Tribunal by submitting that
once the Bench of the Tribunal while
deciding T.A. No.02 of 2005 had quashed
the order of the disciplinary authority dated
22.04.1991 as well as the appellate order
dated 18.01.1996 it had only remitted the
matter to the appellate authority to decide
the appeal since by the quashing of the
penalty order no appeal remained pending
before the Appellate Authority.

7. Shri D.P. Singh, learned counsel for
the respondents, on the other hand, sought
to justify the order of the Tribunal and
submitted that the intention of the Tribunal
while deciding T.A. No.02 of 2005 was
very clear that it was not quashing the
penalty order of the disciplinary authority
dated 22.04.1991 rather it was setting aside
the appellate order dated 18.01.1996, in as
much as in its operative portion the
direction was issued to the appellate
authority to reconsider the petitioner's
appeal.

8. We are not inclined to accept the
submission of the learned counsel for the
respondents. The operative portion of the
order of the Tribunal dated 28.08.2009
deciding T.A. No.02 of 2005 reads as
under:

"We have also noticed against the
order dated 2.8.2006 passed by the Hon'ble
High Court, Allahabad, the respondents
have filed Special Appeal before Hon'ble
Supreme Court and the matter is still
subjudice
there.
Having
given
our
thoughtful consideration to the pleas
advanced by the parties counsel, we are
finally of the view that the appellate order
dated 18.1.1996 passed by the appellate
authority is cryptic non-speaking and not
according to law. We accordingly allow the
O.A. partly and quash and set aside the order
dated 22.4.1991 and 18.1.1996 (Annexure
No.2 and 3) respectively. The matter is
remitted back to the Appellate Authority to
reconsider the appeal of the appellant within a
period of three months from the date of receipt
of copy of this order."

9. There is absolutely no ambiguity so
far as the order dated 28.08.2009 is
concerned in that the Tribunal had quashed
and set aside the order dated 22.04.1991 as
well
as
the
appellate
order
dated
18.01.1996. Once the penalty order had
been set aside there remained nothing
thereafter for the appellate authority to
decide since the appellate authority could
only decide a pending appeal and once the
penalty order itself was quashed any
pending
appeal
would
have
become
infructuous unless there was a direction by
the Tribunal to the disciplinary authority to
pass a fresh order and if a fresh order had
been passed by the disciplinary authority
the petitioner would have had a fresh right
to file an appeal before the appellate
authority.

10. In the order dated 13.09.2017
impugned herein the Tribunal has sought to
clarify the earlier order of the Tribunal
dated 28.08.2009 and has held as under:

"8.
After
giving
thoughtful
consideration to the written submissions
made by both the parties as also the
pleadings available on records, we are of
the view that the stand taken by the
applicant is not justified as it is not
disputed that the T.A. No.02/2005 was
decided by this Tribunal vide its Order
dated 28.08.2009, the operative part of the
said Order reads as under:-

"We have also noticed against the
order dated 2.8.2006 passed by the Hon'ble
142 INDIAN LAW REPORTS ALLAHABAD SERIES
High Court, Allahabad, the respondents
have filed Special Appeal before Hon'ble
Supreme Court and the matter is still
subjudice
there.
Having
given
our
thoughtful consideration to the pleas
advanced by the parties counsel, we are
finally of the view that the appellate order
dated 18.1.1996 passed by the appellate
authority is cryptic not-speaking and not
according to law. We accordingly allow the
O.A. partly and quash and set aside the
order dated 22.4.1991 and 18.1.1996
(Annexure No.2 and 3) respectively. The
matter is remitted back to the Appellate
Authority to reconsider the appeal of the
appellant within a period of three months
from the date of receipt of copy of this
order."

Both the parties have relied upon
the aforesaid operative portion of the said
Order. We also observe that the Tribunal
while passing the aforesaid Order dated
28.08.2009 in T.A. No.02/2005 specifically
noted that the order of the appellate
authority dated 18.01.1996 was cryptic,
not-speaking and not according to the law
and this Tribunal allowed the said OA
partly. However, while quashing the order
dated
18.1.1996,
the
Tribunal
also
mentioned
quashing
of
order
dated
22.4.1991 and the applicant in fact wants
to take the benefit of quashing of order
dated 22.4.1991. However, this Tribunal
while passing the aforesaid Order further
specifically held that 'the matter is remitted
back
to
the
Appellate
Authority
to
reconsider the appeal of the applicant
within a period of three months from the
date of receipt of copy of this order.'
Meaning thereby that this Tribunal was
very much clear in their mind that they
were quashing the appellate authority's
order, which was a cryptic, non-speaking
and not according to law. Therefore, this
Tribunal was amply justified to quash the
appellate authority's order and to direct the
appellate authority to reconsider the appeal
of the applicant and further that this
Tribunal while deciding the said OA has
neither questioned the order passed by the
disciplinary authority nor anywhere is it
stated that it is not in accordance with law.
Hence, there was no question for the
Tribunal to quash the order of the
disciplinary authority. Even if it
is
mentioned in the Order, it is amply clear
that this Tribunal only intended to quash
the appellate authority's order and for that
reason, the matter was remitted back to the
appellate authority only to reconsider the
appeal of the applicant."

11. The Tribunal has held that the
previous Tribunal while passing the order
dated 28.08.2009 had never questioned the
order of the disciplinary authority dated
22.04.1991 and was very clear in its mind
that it was only quashing the appellate
order and had only remitted the matter back
to the appellate authority to reconsider the
appeal of the applicant. The Tribunal
further held that the petitioner also never
challenged the proceedings before the
appellate authority and therefore, it was not
open for him to raise this issue before the
Tribunal.

12. In fact we find that the Tribunal
while passing the impugned order dated
13.09.2017 was virtually sitting in review
over the previous order of the Tribunal
dated 28.08.2009 passed in T.A. No.02 of
2005 which was not permissible while
deciding a fresh Original Application and
there was no review pending before the
Tribunal against the previous order dated
28.08.2009.

13. In our opinion, the findings
recorded by the Tribunal in this regard are
9 All. Smt. Abha Singh Vs. The State of U.P. & Ors.
143
thoroughly misconceived and rather in the
nature of a review of its earlier judgment and
order dated 28.08.2009 passed in another
claim proceeding. Once the Tribunal in the
previous proceedings, while passing the order
dated 28.08.2009 had quashed the penalty
order dated 22.04.1991 nothing remained to be
remitted to the appellate authority as any
pending appeal before the appellate authority
would have as a consequence become
infructuous once the punishment order itself
stood quashed. May be the petitioner who is
appearing in person had not challenged the
proceedings before the appellate authority that
would not validate the order of the appellate
authority which was otherwise illegal and a
nullity. So far as the applicability of the
provisions of Rule 129 of the P & T Manual,
Volume-III to the proceedings before Kendriya
Vidyalaya Sangthan is concerned, we are
satisfied that the said rule has no application to
Kendriya Vidyalaya Sangthan, which is
governed by its own rules and regulations and
the Central Civil Services (Classification,
Control and Appeal) Rules, 1965.

14. We in fact note that the department
had never approached the High Court
challenging the order dated 28.08.2009 nor did
it file any application for review or for
clarification of the said order with regard to the
quashing of the punishment order dated
22.04.1991. The respondents also in their
counter affidavit have not disclosed what was
the nature of the charges against the petitioner
which resulted in his dismissal from service.
The charge sheet has not been filed with the
counter affidavit nor has any enquiry report
been placed before us. We find that the matter
has been travelling in and out of the portals of
the Tribunal and of this Court since 1991 and
the petitioner is now 64 years of age has also
retired from service and that it would not serve
the ends of justice to remit the matter back to
the disciplinary authority. Even otherwise, as
already noted above, the previous order of the
Tribunal was never put to challenge by the
respondents, therefore our considered view is
that the matter should be given a quietus now.

15. We, therefore find that the order
of the Central Administrative Tribunal,
Allahabad dated 13.09.2017 is wholly
illegal and without jurisdiction and the
same is accordingly quashed.

16. We also find that since the penalty
order dated 22.04.1991 had itself been set
aside
by
the
Tribunal
in
previous
proceedings and thereafter there were no
proceedings pending before the Tribunal
nor was any direction given to proceed
afresh in the departmental proceedings at
any stage the petitioner who has long
retired and cannot be reinstated in service,
will
nevertheless
be
entitled
for
regularization of the period he was under
suspension with all consequential benefits.
The respondents shall settle all the
consequential benefits, financial benefits
and retiral dues of the petitioner within a
period of four months from the date of
receipt of the certified copy of this order.

17. The writ petition stands allowed.

18. There shall be no order as to cost.
----------
(2020)09ILR A143
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.11.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Writ A No. 55658 of 2004

Smt. Abha Singh ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents