# Dev Prakash Tripathi v. State of U.P. & Ors

- **Citation:** (2024) 4 ILRA 509
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-13
- **Case number:** Writ A No. 41897 of 2014
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dev-prakash-tripathi-v-state-of-u-p-ors-51828
- **Pages:** 7

## Headnote

A. Service Law - Termination - Service as
a
Shiksha
Mitra
-
Charges
of
unsatisfactory service and of making off
with Attendance Register were leveled -
No material particular was on record -
Effect - Held, there is nothing said in the
impugned order, even vaguely, apart from
one fact as to how the petitioner's work
and
conduct
were
unsatisfactory
or
obstructive of work in the institution.
Before allegations of this kind can be
sustained, they have to be definitive in the
sense that particulars and facts have to be
set out as to how the petitioner's work is
unsatisfactory, citing instances of it, and
how his conduct is blameworthy - The
District
Magistrate
has
granted
an
approval without application of mind to
any of the glaring infirmities - No act of
the St. or its officials, can be so uncertain
and so full of contradictions. The BSA, who
passed the impugned order and the
District Magistrate, who granted approval
to it on 20.06.2014, shall stand duly
cautioned to be careful in matters dealing
with rights of citizens. (Para 10, 11, 13
and 15)

Writ petition allowed. (E-1)
510 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

4 All. Dev Prakash Tripathi Vs. State of U.P. & Ors.
509
impose some limitations on the punishment
that the respondents can award the
petitioner in case he is again found guilty.

30. In the result, this writ petition
succeeds
and
stands
allowed.
The
impugned order dated 31.07.1993 passed
by the District Magistrate, Budaun and the
Appellate Order dated 13.02.2014 passed
by the Commissioner, Bareilly Division,
Bareilly
are
hereby
quashed.
The
petitioner shall be deemed to be in service
until the date of his superannuation in the
ordinary course. It would be open to the
respondents to resume proceedings against
the petitioner from the stage of the chargesheet, and if they elect so to do, neither
emoluments due to the petitioner until his
superannuation nor any part thereof or
other post-retiral benefits, to which the
petitioner
would
be
entitled
upon
superannuation, would be payable to him,
until
final
orders
are
passed.
The
entitlement of the petitioner to emoluments
until the date of his superannuation and his
post-retiral benefits would be subject to the
outcome of fresh proceedings, if elected to
be pursued. If, however, no proceedings
afresh are elected to be pursued, the
petitioner would be entitled to 50% of his
emoluments
from
the
date
of
the
impugned order passed by the District
Magistrate until his superannuation, and
all other post-retiral benefits would be
payable, as if the orders impugned had
never been made.

31. There shall be no order as to costs.

32. Let the Registrar (Compliance)
communicate this judgment and order to
the
Commissioner,
Bareilly
Division,
Bareilly
and
the District
Magistrate,
Budaun.
----------
(2024) 4 ILRA 509
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.03.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 41897 of 2014

Dev Prakash Tripathi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri N.L. Pandey, Sri V.K. Mishra

Counsel for the Respondents:
C.S.C., Sri Ashok Kumar Singh, Sri D.D.
Chauhan

A. Service Law - Termination - Service as
a
Shiksha
Mitra
-
Charges
of
unsatisfactory service and of making off
with Attendance Register were leveled -
No material particular was on record -
Effect - Held, there is nothing said in the
impugned order, even vaguely, apart from
one fact as to how the petitioner's work
and
conduct
were
unsatisfactory
or
obstructive of work in the institution.
Before allegations of this kind can be
sustained, they have to be definitive in the
sense that particulars and facts have to be
set out as to how the petitioner's work is
unsatisfactory, citing instances of it, and
how his conduct is blameworthy - The
District
Magistrate
has
granted
an
approval without application of mind to
any of the glaring infirmities - No act of
the St. or its officials, can be so uncertain
and so full of contradictions. The BSA, who
passed the impugned order and the
District Magistrate, who granted approval
to it on 20.06.2014, shall stand duly
cautioned to be careful in matters dealing
with rights of citizens. (Para 10, 11, 13
and 15)

Writ petition allowed. (E-1)
510 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed
against the order dated 30.06.2014 passed
by the District Basic Education Officer,
Siddharth Nagar (for short, 'the BSA'),
terminating the services/ contract of service
of the petitioner as a Shiksha Mitra with
immediate effect as also the order of the
District Magistrate, Siddharth Nagar dated
20.06.2014, granting approval to the
proposal for termination of the petitioner's
services/ contract of service.

2. The petitioner was appointed a
Shiskha Mitra at the Primary Vidyalaya,
Rasiyawal Khurd, Development Block
Lotan, District Siddharth Nagar (for short,
'the institution') in accordance with law and
after following the procedure for selection
and appointment of a Shiksha Mitra,
provided by Government Orders issued on
the subject from time to time. The
petitioner says that he was discharging his
duties as a Shiksha Mitra faithfully and to
the satisfaction of his superiors since the
year 2001.

3. In substance, the case of the
petitioner is that the allegations against him
are the outcome of machinations of the
Village Pradhan at the relevant time, one
Brahma Yadav and another Veenu Pandey,
the daughter-in-law of a retired teacher,
through whom a sum of Rs.59,500/- were
drawn
by
the
Headmistress
of
the
institution, the Pradhan and Veenu Pandey,
illegally depriving the State exchequer.
This offence was reported to the Police at
the instance of the petitioner, leading to
animosity and the immediate cause for the
Pradhan to lay false reports against the
petitioner through the Gram Shiksha Samiti
about non-provision of the mid-day meal to
children in the institution. Based on the
complaints against the petitioner, he was
issued a notice by the BSA on 18.02.2014,
which the petitioner answered by his reply
dated 26.02.2014. It was mentioned that the
food grains are not supplied by the local
fair
price
shop
dealer,
who
sends
foodgrains to the Pradhan and these are not
provided to the institution for cooking the
mid-day meal. The BSA did not pass any
orders after receiving the petitioner's reply
dated 26.02.2014. The petitioner submitted
a complaint in the matter dated 04.06.2013
to the District Magistrate, apprising him of
illegal actions of the Pradhan. A complaint
about victimization by the Pradhan on false
charges
was
also
made
to
the
Commissioner of the Basti Division by the
petitioner.
There
is
an
assertion
in
paragraph No.12 of the writ petition that
the
officiating
Headmistress
of
the
institution apprised the District Magistrate
on 26.04.2013 that food grains are not
being provided for cooking the mid-day
meal by the fair price shop dealer. A copy
of the said complaint by the officiating
Headmaster of the institution is on record.

4. The petitioner's case is that the
Gram Shiksha Samiti under the stewardship
of the Village Pradhan, without giving any
notice to the petitioner, forwarded a
resolution dated 31.03.2014 to terminate
the petitioner's contract of service. It is
stated in paragraph No.13 of the writ
petition that the BSA, while passing the
impugned
order
dated
30.06.2014,
terminating the petitioner's service, has
remarked that he was issued with a notice
dated
29.04.2014,
providing
him
opportunity to have his say, which he did
not satisfactorily reply. It is averred in
paragraph No.13 of the writ petition that no
such notice was ever served by the BSA.
According to the petitioner, he was served
with a notice dated 21.05.2014, asking him
4 All. Dev Prakash Tripathi Vs. State of U.P. & Ors.
511
to show cause within three days in regard
to the allegations carried in the notice.

5. The petitioner submitted his reply
on 22.05.2014, denying the allegations in
the notice. It was said by the petitioner in
his reply that on 22.05.2014 at 11 a.m., the
Block Education Officer came over to the
institution and took away the attendance
register, which he handed over to the Gram
Pradhan along with other registers. The
petitioner was asked to sign the attendance
register at the Gram Pradhan's house
everyday. The petitioner has asserted that
the BSA has not passed any orders taking
into consideration the petitioner's reply.
Rather, he has forwarded the proposal to
terminate the petitioner's services for
consent of the District Magistrate and
against renewing his service contract for
the next session, without reference to his
reply or defence.

6. The District Magistrate has granted
approval regarding termination of the
petitioner's services/ contract of service on
the basis of the resolution of the Gram
Shiksha Samiti forwarded by the BSA.
Consequent upon the said approval, the
BSA, falling back on the provisions of the
Government Order dated 12.11.2008, has
terminated the petitioner's services by the
impugned order dated 30.06.2014. It is
averred in paragraph No.19 of the writ
petition that the order dated 30.06.2014 is
bad in law because the BSA has recorded
an incorrect finding there that a notice
dated 29.04.2014 was served upon the
petitioner,
besides
another
dated
21.05.2014, to both of which the petitioner
did not reply. The finding is incorrect
because the notice dated 29.04.2014 was
never served, whereas the notice dated
21.05.2014 was answered on 22.05.2014
and duly received in the BSA's office. The
further case pleaded by the petitioner is that
the District Magistrate should have given
opportunity to the petitioner before he
granted approval to act in terms of the
Gram Shiksha Samiti's resolution, said to
have been passed on 31.03.2014. It is the
further case of the petitioner that the
District Magistrate has committed a patent
illegality in passing the impugned order
dated 30.06.2014, without considering the
petitioner's reply, which in any case has
been
passed
without
affording
the
petitioner opportunity of hearing.

7. A counter affidavit has been filed
on behalf of the BSA sworn by Block
Education
Officer.
It
is
averred
in
paragraph Nos.4, 5 and 6 of the counter
affidavit that the work and conduct of the
petitioner
was
not
satisfactory,
and,
therefore, the Gram Shiksha Samiti did not
recommend renewal of the petitioner's
contract for the session 2008-09. The Gram
Shiksha Samiti has sent a proposal for a
new appointment. Copies of the resolution
are annexed as Annexure Nos. CA-1 and 2.
In paragraph No.10 of the counter affidavit,
paragraph Nos.19, 20, 21, 22, 23 and 24
have been answered in the following terms:

"10. That the contents of para no.
19, 20, 21, 22, 23 & 24 of the writ petition
are incorrect as stated therein hence denied
in reply it is submitted that the notice was
served upon the petitioner, but he failed to
give satisfactory reply, reply of petitioner
was not satisfactory, therefore the District
Basic Education Officer terminated the
service of petitioner. Gram Shiksha Samiti
has sent a proposal for removal of the
petitioner, because his work and conduct
was not satisfactory, the Gram Shiksha
Samiti has submitted all evidence before
the District Magistrate who has accepted
the proposal of removal/termination of
512 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner. The impugned order is just,
proper and sustainable in the eye of law.
The
petitioner
had
made
hindrance/
obstruction in Mid-day-mill, due to his
conduct no person are interested to take
charge of Head Master in the institution."

8. This Court by an order dated
30.08.2014 had required learned Counsel
for the BSA, Mr. Ashok Kumar Singh, to
seek instructions particularly in regard to
allegations in paragraph No.19 of the writ
petition. Notice on behalf of respondent
No.4 was accepted by Mr. D.D. Chauhan,
learned Counsel, but there has been no
representation on behalf of the said
respondent or a return. Notice was issued to
respondent No.5 by RP AD on 03.09.2014
and steps were taken on 19.11.2014. The
office
report
shows
that
neither
acknowledgment nor the undelivered cover
had been received back. The service upon
respondent
No.5
is,
therefore,
held
sufficient.

9. Heard Mr. N.L. Pandey, learned
Counsel for the petitioner and Mr. Akhilesh
Kumar Tripathi, learned Standing Counsel
appearing on behalf of respondent Nos. 1, 2
and 3.

10. Upon hearing learned Counsel for
the parties, this Court finds that the
impugned order dated 30.06.2014 cannot
be sustained for more than one reason.
These are: firstly, that it is vague and
imputes to the petitioner unsatisfactory
service in uncertain terms without any
material particulars, capable of being
answered or asserted. Secondly, it says that
the petitioner was asked to submit a reply
to the notice dated 29.04.2014, which he
did not do, but in the face of the petitioner's
denial that the said notice was not served,
there is nothing said in the impugned order
or the return filed, how that notice was
served upon the petitioner. Thirdly, the
impugned order says that a repeat notice
was issued to the petitioner on 21.05.2014
to show cause in respect of whatever the
case against him is, but he did not submit a
satisfactory reply or explanation. It is not
mentioned by even as much as a single
sentence, what the allegation was and how
the
petitioner's
explanation
was
not
satisfactory. Ex facie, it shows nonconsideration of the petitioner's explanation
to the notice dated 21.05.2014. Fourthly,
the only definitive allegation, of whatever
worth, is a complaint attributed to Veenu
Pandey dated 08.05.2014 that the petitioner
has made of with the Shiksha Mitra
Attendance Register and the Students
Attendance Register, which he keeps with
himself and himself remains untraceable.
The petitioner has said that the Attendance
Register relating to the Shiksha Mitra was
taken away by the Block Education Officer
and kept with the Pradhan with instructions
to the petitioner to sign the Attendance
Register there. The impugned order does
not record any finding about the truth of the
matter in this regard. It just mentions the
allegation and rests content with it. Fifthly,
the impugned order says that in view of a
number of resolutions passed by the Gram
Shiksha Samiti mentioned in the opening of
the order, the BSA, after obtaining the
District
Magistrate's
approval
on
20.06.2014, had decided to terminate his
contract of service on grounds of his work
and conduct being unsatisfactory, besides
his non-cooperation and obstructive ways.

11. As already remarked, there is
nothing said in the impugned order, even
vaguely, apart from one fact as to how the
petitioner's
work
and
conduct
were
unsatisfactory or obstructive of work in the
institution. Before allegations of this kind
4 All. Dev Prakash Tripathi Vs. State of U.P. & Ors.
513
can be sustained, they have to be definitive
in the sense that particulars and facts have
to be set out as to how the petitioner's work
is unsatisfactory, citing instances of it, and
how his conduct is blameworthy. What the
impugned order does is merely to cite
labels without the content. A mere
incantation of the words that the work and
conduct of a person is unsatisfactory,
would not imbue them with life or efficacy,
unless the particular acts, facts and
instances of poor work and bad conduct are
mentioned. Then an order that proceeds on
the basis of some definitive allegation has
to record some kind of a finding, which
must proceed on some material to infer that
the allegations hold some truth to them.

12. Across the entire length and
breadth of the impugned order, there is
just one allegation about making off with
the Shiksha Mitra Attendance Register
and the Students Attendance Register,
about which the only material cited is a
complaint by Veenu Pandey. Ignoring the
fact
that
there
are
allegations
of
animosity against Veenu Pandey, there is
no finding with reference to any objective
material on record that in fact the
petitioner made off with the Shiksha
Mitra Attendance Register or that of the
students. To the contrary, there are
allegations about some representations
made by the petitioner that it was the
BSA, who had kept the Attendance
Registers at the Pradhan's home. There is
no
categorical
finding
about
the
petitioner's
guilt
regarding
the
'attendance register's issue'. To put it
shortly, the impugned order is utterly bad
for the vagueness of it. The District
Magistrate's
order
dated 20.06.2014,
granting approval to termination of the
petitioner's contract service, has not been
placed on record in the return filed on
behalf of respondent Nos.1, 2 and 3. The
petitioner has asserted that it was not
made available to him.

13. This Court is inclined to believe
the petitioner because the fashion in which
the District Magistrates generally function
in the State, it is difficult for an ordinary or
a humble man, like a Shiksha Mitra, to
secure a copy of an order of this kind
passed by the District Magistrate on the
administrative files. It was the duty of the
respondents to have placed the District
Magistrate's order on record. In the absence
of the copy of the District Magistrate's
order being placed on record, this Court is
inclined to believe that the District
Magistrate has granted an approval without
application of mind to any of the glaring
infirmities that we have found hereinabove.
The District Magistrate's order is, therefore,
liable to be ignored.

14. To add to all this, this Court
notices another feature, vitiating the order
impugned, which goes utterly unexplained.
In paragraph No.4 of the counter affidavit,
the respondents have taken a stand that the
petitioner's work and conduct was not
found satisfactory and a recommendation
for renewal of his contract had not been
made since the year 2006-07 and also that
the petitioner had brought pressure on the
department without basis to pay his
honorarium. The said stand is evident from
a perusal of paragraph No.4, which says
that a proposal for a new appointment has
been sent by the Gram Shiksha Samiti on
14.02.2009. A perusal of the report of the
Gram Shiksha Samiti dated 15/18.02.2010,
annexed as Annexure No. CA-1 to the
counter affidavit, also shows respondent
Nos.1, 2 and 3 saying that the petitioner's
contract of service has not been renewed
after the year 2006-07, and a proposal for
514 INDIAN LAW REPORTS ALLAHABAD SERIES
appointment made in favour of somebody
else. The said stand of the respondents is
utterly irreconcilable with the impugned
order dated 30.06.2014, where it is said in
the opening part of the order that
dissatisfied with the petitioner's conduct,
the Gram Shiksha Samiti had passed
resolutions dated 25.07.2013, 14.08.2013,
30.09.2013,
02.10.2013,
03.11.2013,
09.12.2013, 25.01.2014 and 26.02.2014,
cautioning the petitioner to bring about
improvement in his work and conduct. It is
further said in the impugned order that
finding no improvement in the petitioner's
work and conduct, the Gram Shiksha
Samiti had passed a resolution dated
31.03.2014, proposing to terminate the
petitioner's contract of service, on the basis
of which the BSA had issued a notice dated
29.04.2014 to the petitioner. If the
petitioner's services/ contract of service had
not been renewed after the year 2006-07 as
per stand of the respondents in the counter
affidavit and the proposal of the Gram
Shiksha
Samiti
dated
15/18.02.2010,
annexed as Annexure No.CA-1 to the
counter affidavit, the occasion could not
have arisen for the Gram Shiksha Samiti to
pass the multiple resolutions, referred to in
the impugned order, in the years 2013 and
2014, cautioning the petitioner and then
resolving to propose the termination of his
contract of service on 31.03.2014.

15. The aforesaid facts show that both
the BSA and the District Magistrate have
proceeded to terminate the petitioner's
services/ contract of service, firstly on
vague allegations of unsatisfactory work
and
conduct,
which
are
utterly
unascertainable. It further shows that both
the BSA and the District Magistrate have
acted to dispense with the petitioner's
services and brought an end to his contract
in some surreptitious manner, without
themselves being sure when the petitioner's
services or contract of service was
determined. No act of the State or its
officials, can be so uncertain and so full of
contradictions. The BSA, who passed the
impugned order and the District Magistrate,
who granted approval to it on 20.06.2014,
shall stand duly cautioned to be careful in
matters dealing with rights of citizens in
whatever
form
these
may
fall
for
consideration. They will bear in mind that
business of the State must not just claim a
presumption about its regularity; it should
exhibit regularity and predictability. For all
the reasons indicated above, this petition
deserves to succeed.

16. In the result, this petition
succeeds and is allowed. The impugned
order dated 30.06.2014 passed by the BSA
and the approval to it, in whatever form
accorded
by
the
District
Magistrate,
Siddharth Nagar are hereby quashed. A
mandamus is issued to the BSA and the
District Magistrate, Siddharth Nagar, to
pass fresh orders, regarding the petitioner's
claim to continue as a Shiksha Mitra,
within four weeks of the receipt of a copy
of this order after, examining the records
carefully and affording the petitioner due
opportunity of being heard. This order will
be communicated to the BSA concerned,
who passed the order impugned dated
30.06.2014,
through
the
Principal
Secretary, Basic Education, Government of
U.P., Lucknow and the District Magistrate
concerned, who granted approval to that
order, through the Secretary (Personnel),
Government of U.P., Lucknow, within a
week of receipt of a copy of this judgment.

17. There shall be no order as to costs.

18. Let a copy of this judgment be
forwarded
for
the
purpose
of
4 All. Udai Singh & Anr. Vs. State of U.P. & Ors.
515
communication to the Principal Secretary,
Basic Education, Government of U.P.,
Lucknow and the Secretary (Personnel),
Government of U.P., Lucknow by the
Registrar (Compliance).
----------
(2024) 4 ILRA 515
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.03.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 59654 of 2015

Udai Singh & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Yogesh Kumar Saxena

Counsel for the Respondents:
Ms. Monika Arya (Addl. C.S.C.)

A. Service Law - Intermediate Education
Act, 1921 - Appointment - Class IV post in
private aided college - On complaint, the
District Magistrate directed to conduct
enquiry on validity of appointment -
Authority of District Magistrate questioned -
Held, there is a complete hierarchy of
officers in the Department of Secondary
Education to take care of such matters - All
of them are answerable to the Principal
Secretary
- One
finds
it
difficult to
understand why the District Magistrate
entertained a complaint regarding a private
aided college and asked the DIOS to inquire
- We disapprove this practice of District
Magistrates intermeddling in the affairs of
other departments and autonomous bodies,
where, by the law, they have no say or
jurisdiction. (Para 7, 8 and 9)

B. Service Law - Intermediate Education
Act, 1921 - Ch. III, Reg. 101 of the
Regulations - Appointment - Class IV post -
Financial
approval
-
Arising
out
of
complaint, matter went U.P.to High Court
and after remand back, the Regional Level
Committee rejected the approval - Validity
challenged - Amendment was made in Reg.
101 on 31.12.2009 - Prior to amendment,
DIOS can permit to fill U.P. a Class IV post,
but after amendment, it is only after order
of Director of Education, DIOS can do it -
DIOS granted permission on 10.07.2008 and
recruitment was made on 10.01.2009 -
Applicability of Amendment - Held, when
Regulation 101 was finally amended to give
effect to the policy, it would not affect a
recruitment process already initiated before
the earliest introduction of the policy
through GOs, with due permission of the
DIOS, that had already been granted and
the process of selection completed on
27.02.2009 and appointment letters issued
on 01.03.2009. (Para 7, 12, 13, 31 and 32)

C. Service Law - Appointment - Class IV
post in private aided college - Financial
approval - Selection, appointment and
joining was made U.P.to 01.03.2009 -
Subsequently policy of engagement through
outsourcing was brought - After declaration
of
GO
dated
06.11.2011
providing
engagement
through
outsourcing
as
unconstitutional by the High Court, Reg. 101
was amended on 24.04.2014 providing
filling U.P. of Class IV vacancies through
outsourcing, which was declared valid by
the SU.P.reme Court in Principal, Abhay
Nandan's case - Effect on the validity of the
appointment already made - Held, any
process of recruitment commenced before
08.09.2010 would have to be carried to its
logical conclusion, irrespective of the policy
decision taken on 08.09.2010, the GO dated
06.01.2011 or the ultimate amendment
made to Regulation 101 with effect from
24.04.2014. (Para 32, 34 and 43)

Writ petition allowed. (E-1)

List of Cases cited:

1. Writ A No. 26307 of 2010; Dhruv Narain
Singh Vs St. of U.P. & ors. decided on
13.01.2017