# Dhirendra Singh and others v. State of U.P.Through Secy. Govt. of U.P. Civil Lko. and 3 others

- **Citation:** (2012) 1 ILRA 399
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-04-03
- **Bench:** D.K. Upadhyaya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dhirendra-singh-and-others-v-state-of-u-p-through-secy-govt-of-u-p-civil-lko-42171
- **Pages:** 9

## Headnote

Constitution
of
India,
Article
226Termination of Service-putting stigmabased upon preliminary enquiry-order
impugned
can
not
be
termed
as
simplicitor-but founded on allegation of
misconduct-termination Quashed with
salary apart from Training allowance.

Held: Para 22

The Court on the basis of the finding of
guilt recorded in the preliminary enquiry
dated 30.11.2003 and the indications
given by the letter dated 13.01.2004
comes to the definite conclusion that the
services
of
the
petitioners
were
terminated on account of the finding of
guilt. Thus, impugned orders are not
orders of termination simplicitor, rather
they are "founded" on the allegations of
misconduct
and
the
finding
of
misconduct
and
gross
indiscipline
against the petitioners. The impugned
orders, thus, are clearly casting stigma
on the conduct of the petitioners and
hence, in this situation, the impugned
orders are not sustainable at all.
Case law discussed:
(1999) 3 SCC 60; (2010) 8 SCC 220; Special
Appeal No. 126 (S/B) of 2005, Kailash Bharti
vs. State of U.P and others; (2002) 1 SCC 520;
(1999) 2 SCC 21

## Text

1 All] Dhirendra Singh and others V. State of U.P. and others
399
however be open to the disciplinary
authority to pass order of suspension
during the enquiry, which may now be
conducted pursuant to the order of the
learned Single Judge.

17. The appeal stands disposed of
with the above modification.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.04.2012

BEFORE
THE HON'BLE D.K. UPADHYAYA, J.

Service Single No. - 730 of 2004

Dhirendra Singh and others ...Petitioner
Versus
State of U.P.Through Secy. Govt. of U.P.
Civil Lko. and 3 others ...Respondents

Counsel for the Petitioner:
Abdul Moin
Sri Abhinav N Trivedi

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Article
226Termination of Service-putting stigmabased upon preliminary enquiry-order
impugned
can
not
be
termed
as
simplicitor-but founded on allegation of
misconduct-termination Quashed with
salary apart from Training allowance.

Held: Para 22

The Court on the basis of the finding of
guilt recorded in the preliminary enquiry
dated 30.11.2003 and the indications
given by the letter dated 13.01.2004
comes to the definite conclusion that the
services
of
the
petitioners
were
terminated on account of the finding of
guilt. Thus, impugned orders are not
orders of termination simplicitor, rather
they are "founded" on the allegations of
misconduct
and
the
finding
of
misconduct
and
gross
indiscipline
against the petitioners. The impugned
orders, thus, are clearly casting stigma
on the conduct of the petitioners and
hence, in this situation, the impugned
orders are not sustainable at all.
Case law discussed:
(1999) 3 SCC 60; (2010) 8 SCC 220; Special
Appeal No. 126 (S/B) of 2005, Kailash Bharti
vs. State of U.P and others; (2002) 1 SCC 520;
(1999) 2 SCC 21

(Delivered by Hon'ble D.K.Upadhyaya,J. )

1. Fate of the instant writ petition
hinges on the issue as to whether the
impugned orders terminating the services
of the petitioners, though couched in
innocuously worded language to make
them appear to be order of termination
simplicitor, are, in fact, the result of the
employer accepting the allegations of
some misconduct against the petitioners.

2. Heard Sri Abdul Moin and Sri
Abhinava N. Trivedi, learned counsels
for the petitioners and learned Standing
Counsel appearing for the State and
perused the pleadings and material
available on record.

3. To arrive at a conclusion as to
whether the allegations of misconduct
against the petitioners form "Foundation"
or "Motive" for termination of their
services, the facts of the case as culled
from the pleadings on record need to be
examined.

4. Having participated in a selection
for the post of Constable, the petitioners
were selected and accordingly petitioner
no.1,
by
means
of
order
dated
19.04.2003, was required to report at
15th Battalion of Provincial Armed
Constabulary (in short PAC), Agra.
400 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Similarly, petitioner no.2 vide order
dated 20.04.2003 was also directed to
report at the Headquarters of 26th
Battalion, PAC, Gorakhpur.

5. According to the petitioners,
their appointments were on probation for
a period of two years which included
nine months training. The petitioners
were
undergoing
training
at
27th
Battalion, PAC, Sitapur which started
from 25/26.04.2003.

6. It appears that on 23.10.2003,
some
incident
of
mapeet
amongst
trainees took place in the night of
23.10.2003 wherein both the petitioners
are alleged to be involved. Accordingly,
the
Commandant,
27th
Battalion,
Sitapur, where the petitioners were
undergoing
training,
directed
the
Assistant Commandant to conduct a
preliminary enquiry into the incident by
means
of
order
dated
30.10.2003.
Pursuant to the said order, the Assistant
Commandant conducted an eqnuiry into
the allegations of marpeet etc. which is
alleged to have taken place in the said
incident and recorded statements of
various persons including the petitioners.
The
Assistant
Commandant,
PAC
submitted his report of the preliminary
enquiry on 30.11.2003 and concluded
therein that the petitioners were found
guilty of misconducting themselves and
further that they had indulged in the acts
of the indiscipline. The extracts of the
said preliminary enquiry report dated
30.11.2003
is
available
on
record
(Annexure No.8 to the writ petition). In
the said report the recommendation made
by the Assistant Commandant in respect
of the petitioners is as under:-

"fj0 vk0 /khjsUnz flag fj0 vk0 ftrsUnz izrki
Vksyh ua0 4 }kjk fu0 v0 osn izdk'k nqcs dks
igpku dj lksrs le; mls bZ ny ds cSjd esa
ekjuk] fdlh vU; ds dgus ;k mdlkus ij bl
l
l
l
rjg dh ?kksj vuq'kklughurk o mn.Mrk tSlh
rjg dh ?kksj vuq'kklughurk o mn.Mrk tSlh
rjg dh ?kksj vuq'kklughurk o mn.Mrk tSlh
rjg dh ?kksj vuq'kklughurk o mn.Mrk tSlh
dk;Zokgh djuk vkSj vius Lofoosd ls dk;Z u
dk;Zokgh djuk vkSj vius Lofoosd ls dk;Z u
dk;Zokgh djuk vkSj vius Lofoosd ls dk;Z u
dk;Zokgh djuk vkSj vius Lofoosd ls dk;Z u
djus dk nks"kh ik;s tkus ds dkj.k nksuksa fjdzwVksa ds
djus dk nks"kh ik;s tkus ds dkj.k nksuksa fjdzwVksa ds
djus dk nks"kh ik;s tkus ds dkj.k nksuksa fjdzwVksa ds
djus dk nks"kh ik;s tkus ds dkj.k nksuksa fjdzwVksa ds
fo:) fu;ekuqlkj dk;Zokgh djrs gq, lsok ls
fo:) fu;ekuqlkj dk;Zokgh djrs gq, lsok ls
fo:) fu;ekuqlkj dk;Zokgh djrs gq, lsok ls
fo:) fu;ekuqlkj dk;Zokgh djrs gq, lsok ls
vyx fd;s tkus dh laLrqfr dh tkrh gSA
vyx fd;s tkus dh laLrqfr dh tkrh gSA
vyx fd;s tkus dh laLrqfr dh tkrh gSA
vyx fd;s tkus dh laLrqfr dh tkrh gSA"

7. The petitioners were also placed
under suspension by means of orders
dated
30.10.2003
passed
by
the
Commandants, 27th Battalion, PAC
Sitapur which are on record (Annexure 7
& 7A to the writ petition). Thus,
admittedly, before passing the order of
termination of services of the petitioners,
a preliminary inquiry was got conducted
and detailed inquiry report running into
at least 57 pages was submitted by the
Inquiry Officer holding the petitioners
guilty
of
misconduct
and
gross
indiscipline. The recommendation by the
Inquiry Officer was also made in respect
of the petitioners that they may be
removed from service.

8. For the purposes of deciding the
issue involved in the instant writ petition,
it is not necessary to go into the veracity
or, truthfulness or otherwise of the
incident or the charges or for that matter,
into
the
allegations
against
the
petitioners. However, the Court notices
that in the incident of marpeet a
preliminary
inquiry
was
conducted
wherein the petitioners were found
guilty. It is also noticed that the
petitioners were placed under suspension
and this incident ultimately resulted in
passing
of
the
impugned
orders
terminating the services of the petitioners
which, though, is being portrayed as
order of termination simplicitor. The
question which needs to be considered is
1 All] Dhirendra Singh and others V. State of U.P. and others
401
as
to
whether
the
allegations
of
misconduct or the findings of guilt
recorded by the Inquiry Officer in the
preliminary
inquiry
report
dated
30.11.2003
form
"Foundation"
or
"Motive" of passing of the impugned
orders".

9. Learned counsels for the
petitioners
heavily
relied
on
two
judgments of the Hon'ble Supreme Court
i.e
Dipti
Prakash
Banerjee
Vs.
Satyendra Nath Bose National Centre
for Basic Sciences, Calcutta and Others,
reported in (1999) 3 SCC 60 and Union
of India and Others Vs. Mahaveer C.
Singhvi, reported in (2010) 8 SCC 220
and submitted that analysis of the facts
of the present case and material available
on record unambiguously establish that
the allegations against the petitioners and
the findings of misconduct form the
foundation
of
impugned
orders
of
termination of services of the petitioners
and not the motive. Hence, the impugned
orders cannot be said to be orders of
termination simplicitor, rather the orders
passed are stigmatic and punitive in
nature. Hence, the same cannot be
allowed to be sustained for the reason
that no inquiry was held prior to passing
of the impugned orders.

10. Learned counsels for the
petitioners further submitted that though
the
orders
under
challenge
are
innocuously worded and do not contain
anything which points out or indicates
that they are founded on the allegations
of misconduct and finding of guilt
against the petitioners but the Court can
pierce the veil and arrive at the correct
conclusion that, in fact, the impugned
orders are punitive in nature and not
simplicitor.

11. Learned counsels for the
petitioners argued that the stigma or the
fact as to whether the impugned orders
are punitive can be inferred from the
documents and material available on
record. The termination order may not
contain a word pointing out that it is
stigmatic but if on the basis of material
available on record it can safely be
concluded that the order of termination
of services of the petitioners are founded
on the findings of misconduct, the Court
can quash the orders as being punitive in
nature.

12. Learned counsels for the
petitioners in this regard refer to para 21
of the judgment rendered by Hon'ble
Supreme Court in case of Dipti Prakash
Banerjee (supra) which runs as follows:-

"If findings were arrived at in an
enquiry as to misconduct, behind the
back of the officer or without a regular
departmental enquiry, the simple order
of termination is to be treated as
"founded" on the allegations and will be
bad. But if the enquiry was not held, no
findings were arrived at and the
employer was not inclined to conduct an
enquiry but, at the same time, he did not
want to continue the employee against
whom there were complaints, it would
only be a case of motive and the order
would not be bad. Similar is the position
if the employer did not want to enquire
into the truth of the allegations because
of
delay
in
regular
departmental
proceedings or he was doubtful about
securing adequate evidence. In such a
circumstance, the allegations would be a
motive and not the foundation and the
simple order of termination would be
valid."
402 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

13. It has also been argued on
behalf of the petitioners that in the
instant case the stigma against the
petitioners can be gathered from two
documents i.e. the preliminary inquiry
report dated 30.11.2003 submitted by the
Assistant Commandant, PAC, Sitapur
wherein it has been recorded that the
petitioners
were
found
guilty
of
misconduct and gross indiscipline and
also
the
letters
dated
13.01.2004
(Annexures 9 & 9A to the writ petition)
whereby petitioners were required to
make their deposition in a regular
departmental inquiry conducted against
certain individuals. Referring to the
aforesaid
inquiry
report
dated
30.11.2003, learned counsels for the
petitioners
submitted
that
the
said
inquiry report clearly records a finding
about the petitioners being guilty of
misconduct
and
indiscipline.
The
reference has been emphatically made to
the letters dated 13.01.2004 wherein it
has clearly been indicated that the
services
of
the
petitioners
were
terminated on account of the fact that
they were found guilty in the preliminary
inquiry conducted into the incident of
marpeet which occurred on 23.10.2003.

14. Learned counsels for the
petitioners vehemently argued further
that the impugned orders terminating the
services of the petitioners are punitive in
nature and are stigmatic which is
unambiguously evident from a bare
reading of the letters dated 13.01.2004
which contain clear indication that
services
of
the
petitioners
were
terminated for the reason that they were
found guilty in the preliminary inquiry
report.
Letter
dated
13.01.2004
(Annexure 9 to the writ petition) is
reproduced hereinbelow:-

" }kjk iathd`r Mkd
" }kjk iathd`r Mkd
" }kjk iathd`r Mkd
" }kjk iathd`r Mkd

Hkw0iw0fj0vk0 /khjsUnz flag iq= Jh jkepUnz flag
xzke&ljk;pd xksfcUniqj] iksLV&ijkS[kk
Fkkuk&csoj] tuin&eSuiqjhA

+

fnukWad % 23&10&2003 dks fjdwV vkjf{k;ksa
lfgr vki }kjk vkj{kh osn izdk'k nqcs bZ ny ds
lkFk fd;s x;s ekj ihV ds izdj.k esa izkjfEHkd
ekj ihV ds izdj.k esa izkjfEHkd
ekj ihV ds izdj.k esa izkjfEHkd
ekj ihV ds izdj.k esa izkjfEHkd
tkWap ds mijkaUr vkidks nks"kh ik;s tkus ds dkj.k
tkWap ds mijkaUr vkidks nks"kh ik;s tkus ds dkj.k
tkWap ds mijkaUr vkidks nks"kh ik;s tkus ds dkj.k
tkWap ds mijkaUr vkidks nks"kh ik;s tkus ds dkj.k
vkidh
l
vkidh
l
vkidh
l
vkidh
lsok
lekIr
dh
tk
pqdh
gS
sok
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euokl
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fu0eq0vk0ih0Vh0vkbZ0 t;'kadj ikBd] fu0 vkj{kh
osn izdk'k nqcs] eq0vk0 jktkjke ds fo#) m0iz0
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vihy1⁄2 fu;ekoyh&1991 ds fu;e&141⁄411⁄2 ds
vUrxZr foHkkxh; dk;Zokgh eq> ihBklhu vf/kdkjh
,oa lgk;d lsokuk;d }kjk dh tk jgh gS ftlesa
vkidk c;ku vafdr fd;k tkuk gSA

vr% vkidks lwfpr fd;k tkrk gS fd fnukWad
% 20&1&2004 dks c;ku gsrq 27oha okfguh ih,lh
lhrkiqj esjs dk;kZy; esa mifLFkr gksuk lqfuf'pr
djsaA

i=kWad&ih0,Q0&10&2003
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tuin&eSuiqjh dks lwpukFkZ ,oa vko';d dk;Zokgh
gsrqA"

15.

The
other
letter
dated
13.01.2004 written in respect of the
1 All] Dhirendra Singh and others V. State of U.P. and others
403
petitioner no.2 (Annexure 9A to the writ
petition) is identically worded and is a
verbatim copy of Annexure 9 to the writ
petition.

16. Reliance has also been placed
by the learned counsel for the petitioners
in the case of Union of India and Others
Vs.
Mahaveer
C.
Singhvi (supra)
wherein it has been held that if findings
of misconduct against a probationer is
arrived at behind his back on the basis of
an
inquiry
conducted
into
certain
allegations and if the same forms
foundation of the order of discharge
simplicitor, the same would be bad and
liable to be set aside.

17. Learned counsels for the
petitioners have also drawn the attention
of the Court to para 46 of the judgment
in the case of Union of India and Others
Vs. Mahaveer C. Singhvi (supra), which
is quoted here under:-

"As has also been held in some of
the cases cited before us, if a finding
against a probationer is arrived at
behind his back on the basis of the
enquiry conducted into the allegations
made against him/her and if the same
formed the foundation of the order of
discharge, the same would be bad and
liable to be set aside. On the other hand,
if no enquiry was held or contemplated
and the allegations were merely a motive
for the passing of an order of discharge
of a probationer without giving him a
hearing, the same would be valid.
However, the latter view is not attracted
to the facts of this case."

18. Yet another decision of a
Division Bench of this Court dated
28.02.2005 rendered in Special Appeal
No. 126 (S/B) of 2005, Kailash Bharti
vs. State of U.P and others, has been
relied on behalf of the petitioners. In the
said case, referring to various judgments
of the Hon'ble Supreme Court, the
Division Bench evolved the following
principles:-

"(i) That an order of termination
simpliciter which does not contain any
stigma in its language, does not by itself
debar the Writ Court from looking
behind the order for ascertainment of the
true motive and foundation of it.

(ii) On the basis of the materials on
record
including
affidavits
and
documents brought before the Court, the
Writ Court can, if the circumstances are
appropriate, come to a finding of fact as
to what was the reason and genesis of
the order of termination. In doing that, it
can and should judge, in all the facts and
circumstances, whether in pith and
substance the order of termination is a
product of the employer accepting some
allegation of misconduct or serious
ineptitude against the writ petitioner. In
case of such finding the order of
termination would have to comply with
the requirements of an ordinary inquiry
and hearing.

(iii) If the Court finds that the
inquiry for termination resulted only in
some innocuous departmental finding
against the writ-petitioner, even if it be
reached
behind
his
back,
like
redundancy or mere suitability for the
job, the writ petitioner would have no
case. The reason for this is that the
redundant employer still has a chance of
being employed elsewhere, since he has
a good name left; and that an unsuitable
employee in one Organization and one
404 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Department might still be suitable
elsewhere.
Ineptitude,
negligence,
drunkenness and misconduct are not of
this nature, since those would render the
employee unsuitable everywhere and for
all purposes to a great degree."

19. On the other hand, learned
Standing Counsel appearing for the State
has relied upon the judgment of the
Hon'ble Supreme Court in the case of
P.N. Verma Vs. SGPGI and another,
reported in (2002) 1 SCC 520 and has
submitted
that
merely
because
a
preliminary inquiry was held prior to
passing of the impugned order of
termination simplicitor, it cannot be said
that the impugned orders are punitive in
nature.

20. The competing arguments
advanced by learned counsels for the
respective parties have been considered.
The Division Bench of this Court in the
case of Kailash Bharti vs State of U.P
and others (supra) after analyzing
various pronouncements of the Apex
Court including the case of P.N. Verma
Vs. SGPGI and another (supra), Dipti
Prakash Banerjee Vs. Satyendra Nath
Bose
National
Centre
for
Basic
Sciences, Calcutta and Others (supra)
and in Chandra Prakash Shahi Vs. State
of U.P. and others, reported in (1999) 2
SCC 21 and various other judgments
evolved the principles to be applied as
test to determine as to under what
circumstances the order of termination
simplicitor can be said to be punitive and
further as to the scope of judicial review
in such matters. The Division Bench in
the said case has clearly noted down that
the writ court can look behind the order
to ascertain the true foundation or motive
of the order of termination of service. In
other words, even if the order of
termination is worded innocuously not
indicating or pointing out any allegation
of misconduct, the Writ Court can clear
the web and ascertain the true colour of
the order and infer as to whether the
allegation of misconduct is the motive or
the foundation of order of termination.

21. As to the difference between the
situation where the order can be said to
be "founded" on the allegations of
misconduct and the situation where the
allegations can be said to be a case of
"motive" for passing the order of
termination, it must suffice to say that
the simple order of termination will be
treated as "founded" on the allegations if
the findings were arrived at in an enquiry
without
a
full
fledged
regular
departmental enquiry whereas if the
employer is not inclined to conduct an
enquiry but simply wants to discontinue
the services of the employee against
whom certain allegations are there, it
will be a case of "motive". In case the
order of termination is founded on the
allegations of misconduct then the same
would be vitiated and not sustainable.
However, if the allegations are not
intended to be enquired into by the
employer and the employer intends to
discontinue the services of the employee
against whom there are complaints, the
same would be a case based on "motive"
and the same would be an order of
termination simplictor.

22. Looking to the facts of the
instant case, it is abundantly clear that
though
no
full
fledged
regular
departmental enquiry was conducted but
nonetheless, the preliminary enquiry was
held wherein the petitioners have been
held guilty of misconduct and gross
1 All] Dhirendra Singh and others V. State of U.P. and others
405
indiscipline. The basis of passing of the
impugned orders terminating the services
of the petitioners is the finding of
misconduct and of gross indiscipline
recorded by the Assistant Commandant
in his enquiry report dated 30.11.2003.
This fact is evident from the letters dated
13.01.2004 wherein it is clearly indicated
that the services of the petitioners were
terminated on account of the findings of
guilt as recorded in the preliminary
enquiry report. The Court on the basis of
the finding of guilt recorded in the
preliminary enquiry dated 30.11.2003
and the indications given by the letter
dated 13.01.2004 comes to the definite
conclusion that the services of the
petitioners were terminated on account of
the finding of guilt. Thus, impugned
orders are not orders of termination
simplicitor, rather they are "founded" on
the allegations of misconduct and the
finding
of
misconduct
and
gross
indiscipline against the petitioners. The
impugned orders, thus, are clearly
casting stigma on the conduct of the
petitioners and hence, in this situation,
the impugned orders are not sustainable
at all.

23. In para 10 of the judgment in
the case of Union of India and Others
Vs. Mahaveer C. Singhvi (supra),
Hon'ble Supreme Court has clearly
observed
that
if
findings
as
to
misconduct were arrived at even without
a regular departmental enquiry, a simple
order of termination is to be treated as
founded on the allegations and would be
bad.

24. In view of discussions made
and reasons indicated above, the Court
finds that the impugned orders dated
04.12.2003, terminating the services of
the petitioners which are annexed as
Annexure No. 1 and 2 to the writ petition
respectively, are not sustainable being
bad in law. Hence the same are hereby
quashed.

25. Apart from challenging the
impugned
orders
dated
04.12.2003
whereby the services of the petitioners
were terminated (Annexures 1 & 2 to the
writ petition), the petitioners have also
challenged the order dated 07.01.2005
wherein
the
Commandant,
27th
Battalion, PAC, Sitapur has stated that in
compliance of the interim order dated
09.02.2004 passed in the instant petition,
the petitioners were allowed to complete
the remainder period of their training but
the decision regarding their reinstatement
in service shall be taken after final
judgment in the writ petition. The
petitioners have also challenged an order
again passed by the Commandant 27th
Battalion, PAC Sitapur whereby the
petitioners were ordered to be reinstated
in compliance of the interim order dated
13.07.2006 passed in this writ petition
with a simultaneous prayer to direct the
opposite parties to pay salary and other
allowances to the petitioners treating
them in continuous services w.e.f.
07.01.2005.

26. As regards the prayer of the
petitioners for payment of salary etc
certain developments took place after
filing of the writ petitions which have
been noticed by the Court. While
entertaining the writ petition this Court
passed an interim order on 09.02.2004
directing therein that the petitioners shall
be allowed to undergo and complete their
training. Accordingly, in compliance of
the said interim order dated 09.02.2004,
the petitioners were allowed to undergo
406 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
training and on 07.01.2005 an order was
passed by the Commandant stating
therein that final decision regarding the
reinstatement of the petitioners shall be
taken after final judgement of this Court
in the present writ petition. The said
order
dated
07.01.2005
has
been
challenged by the petitioners by way of
seeking amendment in the writ petition
and this Court by means of order dated
13.01.2005 provided that till the next
date of listing the operation of the order
dated 07.01.2005 shall be remain stayed.
However, it is noteworthy that the
operation of the order of termination of
services of the petitioners was never
stayed. Though there was no stay, by this
Court of the orders of termination of
services of the petitioners, another order
was passed by the Court on 13.07.2006
directing the opposite parties to ensure
compliance of the Court's order dated
13.01.2005
and
further
that
the
petitioners may be given posting and
assigned their duties. The Court notices
that by the order dated 13.01.2005, only
operation of the order dated 07.01.2005
was stayed which provided that decision
regarding reinstatement of the petitioners
shall be taken after final decision of the
writ petition, however, the orders of
termination of services were never
stayed.

27. Notwithstanding the fact that
the orders terminating the services of the
petitioners were never stayed by the
Court, it appears that in compliance of
the order dated 13.07.2006, the order
dated 25.01.2007 (Annexure No. 14 to
the writ petition) was passed reinstating
the
petitioners
in
service.
The
reinstatement of the petitioners in service
was made in compliance of the order
dated 13.07.2006 of the Court whereby
for the first time the opposite parties
were directed by this Court that the
petitioners may be given posting and
assigned
their
duties.
Prior
to
13.07.2006, no order by the Court was
passed either staying the operation of the
orders of termination of services of the
petitioners or issuing interim Mandamus
for reinstatement of the petitioners.

28. In the light of above facts, the
Court, while quashing the impugned
orders of termination of services of the
petitioners, allows the writ petition and
further directs that the petitioners shall
be
entitled
for
salary
and
other
admissible allowances w.e.f. the order
dated 13.07.2006 passed by this Court,
apart
from
payment
of
emoluments/allowances admissible to
them
during
the
training
period.
Accordingly, the opposite parties shall
pay this amount within a period of eight
weeks from the date of production of
certified copy of this judgment.

29. On account of quashing of
impugned orders terminating the services
of the petitioners by this judgment, they
shall be given the benefit of continuity of
service throughout but would not be
entitled to payment of salary and
allowances for the period prior to
13.07.2006.

30. In terms of the above
observations/directions, the writ petition
is allowed.
---------
1 All] Chauharya Dubey V. State of U.P. and others
407
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.03.2012

BEFORE
THE HON'BLE S.P. MEHROTRA, J.
THE HON'BLE MRS. SUNITA AGARWAL, J.

Special Appeal No. 1349 of 2008

Chauharya Dubey

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

Counsel for the Petitioner:
Sri Ashok Khare
Sri Vinod Kumar Singh
Sri Arun Kumar Mishra
Sri Radha Kant Ojha
Sri Dinesh Kumar Tripathi
Sri R.S. Gupta

Counsel for the Respondents:
Sri G.k.Gupta
Sri M.D. Singh 'Shekhar'
Sri R.D. Tiwari
Sri Sanjeet Kumar Yadav
Sri A.K. Yadav
Sri Pankaj Rai
C.S.C.

Constitution
of
India,
Article
226appointment of Principle by Transfer-No
objection by authorized controller for
purposes
of
mutual
consent
of
management
of
both
institution-be
treated the consent if manager held-
"Yes" as per law laid down by Full Bench
Yashoda Rajkumari Kunjali's case.

Held: Para 18

It will thus be noticed that the main
contention
made
by
the
petitionerappellant in the Writ Petition as also in
the
present
Special
Appeal
stands
answered
against
the
petitionerappellant, and it is evident that the
Prabandh Sanchalak of the institution in
question was authorized to give consent
and No-Objection Certificate in respect
of the transfer of the respondent no.6 on
the post of Principal to the institution in
question.
Case law discussed:
(2002) 1 UPLBEC 683; Civil Misc. Writ Petition
No. 46320 of 2004, Yashoda Raj Kumari Kunjil
Vs. State of U.P. and others; (2011) 1 UPLBEC
370

(Delivered by Hon'ble S.P. Mehrotra, J. )

1. The present Special Appeal has
been filed against the judgment and order
dated 22.9.2008 passed by the learned
Single Judge dismissing Civil Misc. Writ
Petition No. 49796 of 2008 filed by the
petitioner-appellant.

2. It appears that the petitionerappellant was working on the post of
Lecturer
in
Gangapur
Inter
College,
Gangapur,
Varanasi
(hereinafter
also
referred to as "the institution in question").
By the order dated 7.3.2008, Prabandh
Sanchalak was appointed in the institution
in question. One Dashrath Singh, who was
working as the Principal of the institution in
question, after attaining the age of
superannuation retired from the post of
Principal on 30.6.2008.

3. By the order dated 1.7.2008 passed
by the Prabandh Sanchalak of the institution
in question, the petitioner was appointed as
Officiating Principal of the institution in
question. It was further observed in the said
order
dated
1.7.2008
that
the
pay,
allowances, etc., admissible for the said
post, would be payable after the consent/
approval of the District Inspector of
Schools, Varanasi.

4. By the order dated 26.7.2008, the
District Inspector of Schools, Varanasi
attested the signature of the petitioner-