# Dr. Bharat Sah v. S.G.P.G.I. of Medical Sciences, Lko & Ors

- **Citation:** (2021) 9 ILRA 1193
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-09
- **Case number:** Service Single No. 17450 of of 2020
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-bharat-sah-v-s-g-p-g-i-of-medical-sciences-lko-ors-47367
- **Pages:** 13

## Headnote

A. Service Law - Grant and extension of
lien - Voluntary retirement - SGPGIMS Act,
1983- Section 11; Schedule I of First
Regulations 2011 read with the Order
dated
02.07.2019;
General
Rules
of
SGPGI: Regulation 95; Rule 7 of 1999
Rules; Constitution of India: Article 14,
16, 21 - The petitioner was granted extension
of service for three years w.e.f. 16.1.2019 for
holding post of Campus Director, NIFT by the
President, SGPGI subject to the approval of the
Governing Body. However, the Governing Body
has refused such extension. The petitioner in a
bonafide manner continued on the post of
Campus Director, NIFT, Raebareli legitimately
expecting that since the President of SGPGI is
also President / Chairman of the Governing
Body of SGPGI, therefore, the said decision of
the President would be upheld by the Governing
Body. There is no doubt that the decision
of the Governing Body would be binding
over the opinion or permission of an
individual member including the Chairman
/ President of the statutory body but at
the same time it may not be said to be any
lapse on the part of the petitioner to
continue on the post of Campus Director,
NIFT pursuant to the permission being
granted by the President for holding the
post
for
further
three
years
w.e.f.
16.1.2019. Therefore, the conduct of the
petitioner continuing on the post of Campus
Director, NIFT, Raebareli is bona fide conduct in
view of the facts and circumstances of the
present case. (Para 41)

B.
The
proceedings
of
departmental
inquiry start when the charge-sheet is
provided to the incumbent seeking his
explanation / defense reply. The rationale
behind it is very clear that the disciplinary
authority can take any decision on the conduct
of an employee or can absolve him considering
his / her bona fide, or could pass any alternative
or substitute order instead of issuing chargesheet for conducting full fledged disciplinary
inquiry. However, as soon as the charge-sheet
is provided to the incumbent indicating the
charges then it would be the very first stage of
initiation of departmental inquiry. (Para 44)

Therefore, the impugned order dated 23.4.2020
could not be treated as if the departmental
inquiry has been initiated against the petitioner.
It was, at the best, a warning to the effect that
if the petitioner does not obey the direction of
the competent authority the departmental
inquiry against the petitioner for awarding major
punishment may likely to be initiated. (Para 45)

The letter dated 9.10.2020 provides that the
departmental inquiry has been initiated against
the petitioner and inquiry officer has been
appointed with the direction to conclude the
departmental inquiry within a period of two
months. However, by that time no charge-sheet
was provided to the petitioner and before this,
the petitioner had already submitted his
application
dated
05.05.2020
for
seeking
voluntary retirement. (Para 46)

C. Voluntary retirement - General Rules of
SGPGI: Regulation 95 - The petitioner
submitted
an
application
for
voluntary
retirement on 5.5.2020 when no departmental
inquiry was pending against him. Therefore, the
petitioner was fulfilling both the conditions of
concerning general rule for accepting voluntary
retirement inasmuch as the petitioner has
already attained the required age and has
completed the requisite period of service and no
1194 INDIAN LAW REPORTS ALLAHABAD SERIES
disciplinary inquiry was initiated or pending
against the petitioner at that point of time.
(Para 42)

The departmental inquiry can be said to have
been initiated or pending w.e.f. the date when
the charge-sheet is issued against an employee
and there is no doubt that on 5.5.2020 no
departmental inquiry / disciplinary proceedings
was initiated or pending against the petitioner.
The petitioner was being forced to submit his
joining on such post which has been declared as
'Dying Cadre' and none was posted on such post
after 15.1.2014 when the petitioner submitted his
joining at NI

## Text

_Characters 0–39,901 of 40,407. This is a partial read: ask again with offset=39901 for what follows._

9 All Dr. Bharat Sah Vs. S.G.P.G.I. of Medical Sciences, Lko & Ors.
1193
----------
(2021)09ILR A1193
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.09.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 17450 of of 2020

Dr. Bharat Sah ...Petitioner
Versus
S.G.P.G.I. of Medical Sciences, Lko & Ors.
 ...Respondents

Counsel for the Petitioner:
Sunil Sharma, Kusharga Sah

Counsel for the Respondents:
A N Trivedi

A. Service Law - Grant and extension of
lien - Voluntary retirement - SGPGIMS Act,
1983- Section 11; Schedule I of First
Regulations 2011 read with the Order
dated
02.07.2019;
General
Rules
of
SGPGI: Regulation 95; Rule 7 of 1999
Rules; Constitution of India: Article 14,
16, 21 - The petitioner was granted extension
of service for three years w.e.f. 16.1.2019 for
holding post of Campus Director, NIFT by the
President, SGPGI subject to the approval of the
Governing Body. However, the Governing Body
has refused such extension. The petitioner in a
bonafide manner continued on the post of
Campus Director, NIFT, Raebareli legitimately
expecting that since the President of SGPGI is
also President / Chairman of the Governing
Body of SGPGI, therefore, the said decision of
the President would be upheld by the Governing
Body. There is no doubt that the decision
of the Governing Body would be binding
over the opinion or permission of an
individual member including the Chairman
/ President of the statutory body but at
the same time it may not be said to be any
lapse on the part of the petitioner to
continue on the post of Campus Director,
NIFT pursuant to the permission being
granted by the President for holding the
post
for
further
three
years
w.e.f.
16.1.2019. Therefore, the conduct of the
petitioner continuing on the post of Campus
Director, NIFT, Raebareli is bona fide conduct in
view of the facts and circumstances of the
present case. (Para 41)

B.
The
proceedings
of
departmental
inquiry start when the charge-sheet is
provided to the incumbent seeking his
explanation / defense reply. The rationale
behind it is very clear that the disciplinary
authority can take any decision on the conduct
of an employee or can absolve him considering
his / her bona fide, or could pass any alternative
or substitute order instead of issuing chargesheet for conducting full fledged disciplinary
inquiry. However, as soon as the charge-sheet
is provided to the incumbent indicating the
charges then it would be the very first stage of
initiation of departmental inquiry. (Para 44)

Therefore, the impugned order dated 23.4.2020
could not be treated as if the departmental
inquiry has been initiated against the petitioner.
It was, at the best, a warning to the effect that
if the petitioner does not obey the direction of
the competent authority the departmental
inquiry against the petitioner for awarding major
punishment may likely to be initiated. (Para 45)

The letter dated 9.10.2020 provides that the
departmental inquiry has been initiated against
the petitioner and inquiry officer has been
appointed with the direction to conclude the
departmental inquiry within a period of two
months. However, by that time no charge-sheet
was provided to the petitioner and before this,
the petitioner had already submitted his
application
dated
05.05.2020
for
seeking
voluntary retirement. (Para 46)

C. Voluntary retirement - General Rules of
SGPGI: Regulation 95 - The petitioner
submitted
an
application
for
voluntary
retirement on 5.5.2020 when no departmental
inquiry was pending against him. Therefore, the
petitioner was fulfilling both the conditions of
concerning general rule for accepting voluntary
retirement inasmuch as the petitioner has
already attained the required age and has
completed the requisite period of service and no
1194 INDIAN LAW REPORTS ALLAHABAD SERIES
disciplinary inquiry was initiated or pending
against the petitioner at that point of time.
(Para 42)

The departmental inquiry can be said to have
been initiated or pending w.e.f. the date when
the charge-sheet is issued against an employee
and there is no doubt that on 5.5.2020 no
departmental inquiry / disciplinary proceedings
was initiated or pending against the petitioner.
The petitioner was being forced to submit his
joining on such post which has been declared as
'Dying Cadre' and none was posted on such post
after 15.1.2014 when the petitioner submitted his
joining at NIFT, Raebareli nor any person would
be holding such post after 3.11.2023, the date of
superannuation of the petitioner. (Para 48)

Writ petition allowed. (E-4)

Precedent cited:

1. CCE Vs Rajasthan State Chemical Work,
(1991) 4 SCC 473 (Para 32)

2. Aditya Swarup Pandey Vs Srawasthi Gramin
Bank & ors., (2019) (37) LCD 2327 (Para 34)

Precedent followed:

1. UCO Bank & anr. Vs Rajinder Lal Capoor
reported in (2007) 6 SCC 694 (Para 48)

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Sunil Sharma assisted by
Sri Kushagra Sah, learned counsel for the
petitioner and Sri Abhinav Trivedi, learned
counsel for the S.G.P.G.I.

By means of this petition the
petitioner has prayed following relief :

"(i) Issue a writ of certiorari
setting aside the impugned order dated
04.07.2020 and 23.04.2020 passed by
respondent No.2, and the order dated
17.04.2020 passed by the respondent No.4.
[as contained in annexure no. 1 to 3]

(ii) Issue a writ order or direction
in the nature of Mandamus to the
Respondents commanding them to consider
the
Petitioner's
application
dated
05.05.2020 for voluntary retirement afresh
as per SGPGI Regulations, within the
stipulated time and after its acceptance, the
consequential service benefits admissible to
the petitioner under rules be also released
thereafter expeditiously.

(iii) Issue a writ order or
direction in the nature of Mandamus
restraining
the
respondents
from
compelling the petitioner to join back in
SGPGI, and to take any disciplinary
proceedings against the petitioner.

(iv) Issue any other suitable writ,
order or direction as this Hon'ble Court
may deem fit and proper in the facts and
circumstances of the case in favour of the
petitioner alongwith the cost of the
petition."

2. The brief facts of the case are that
the petitioner was appointed on the post of
Assistant Superintendent (House Keeping)
at Sanjay Gandhi Post Graduate Institute of
Medical Science, Lucknow ( hereinafter
referred to as S.G.P.G.I.) on 28.7.1988. The
petitioner was subsequently promoted on
the post of Associate Superintendent (NonMedical) in S.G.P.G.I. in 2013.

3. The petitioner applied for the post
of Campus Director, National Institute of
Fashion Technology, Raebareli, Ministry of
Textile, Government of India (hereinafter
referred to as NIFT) through proper
channel for an open selection. No objection
certificate
has
been
issued
by
the
competent authority of S.G.P.G.I. on
29.8.2013 in favour of the petitioner to
apply on the post of Director, NIFT.
9 All Dr. Bharat Sah Vs. S.G.P.G.I. of Medical Sciences, Lko & Ors.
1195

4. The petitioner thereafter appeared in
interview and was subsequently selected and
was offered appointment on the post of
Campus Director, NIFT on contract basis
vide letter dated 25.11.2013 for an initial
period of one year from the date of assuming
charge with the condition that on satisfactory
performance during the period of probation,
the period of contract for a further period of
four years may be extended. Therefore, it was
a contract appointment of five years.

5. On receipt of the aforesaid order
dated 25.11.2013 the petitioner applied for
grant of lien to his post of Associate
Superintendent (Non-Medical) S.G.P.G.I.
and the Chief Administrative Officer with the
approval of President, S.G.P.G.I., Lucknow
issued office order dated 13.1.2014 allowing
the petitioner to maintain lien on his post for
a period of two years.

6. Thereafter, the petitioner joined at
NIFT as Campus Director on 15.1.2014.

7. However, the petitioner was
informed by the Chief Administrative
Officer,
S.G.P.G.I.
vide
letter
dated
25.1.2016 that on the petitioner's request of
extension of lien of his post of Associate
Superintendent (Non-Medical), S.G.P.G.I.
such lien has been granted for a period of
three years w.e.f. 16.1.2016 by the President,
S.G.P.G.I.. Therefore, the tenure of the
petitioner as Campus Director, NIFT was
expiring on 14.1.2019. The Board of
Governors, NIFT in its 44th meeting took a
decision to extend the term of the petitioner
for a further period of three years w.e.f.
15.1.2019 and the said extension was
conveyed to the petitioner vide order dated
10.12.2018.

8. The petitioner thereafter moved an
application on 12.12.2018 to the Director,
S.G.P.G.I. requesting for further extension
of his lien on the post of Associate
Superintendent (Non-Medical) for a period
of three years w.e.f. 16.1.2019. The
petitioner was informed by the Chief
Administrative Officer vide letter dated
3.5.2019 that the President, S.G.P.G.I. has
granted permission to the petitioner for
extension of service on his post of
Associate Superintendent (Non-Medical),
S.G.P.G.I. for three years w.e.f. 16.1.2019
for holding the post of Campus Director,
NIFT. However, in this order it has been
indicated that this order is being issued
subject to the approval of the Governing
Body.

9. Thereafter, the petitioner was
informed on 2.7.2019 that the office order
dated 3.5.2019 is being amended to the extent
that the extension of lien period of the
petitioner for a further period of three years
under the special circumstances will be put
up before the forthcoming Governing Body
Meeting for decision. It was further informed
that if the approval is granted by the
Governing Body then this case will not be
treated as precedent. Pursuant to the
extension of lien by the opposite parties the
petitioner continued with NIFT.

10. On 17.4.2020 the 91th Governing
Body Meeting took place wherein at Agenda
No. 91.17 was ' Extension of lien of Mr.
Bharat Sah, Associate Superintendent for
another
three
years'
wherein
it
was
categorically mentioned that the Agenda is
for appraisal and post facto approval. The
Governing Body in the same meeting decided
that lien cannot be granted to the petitioner
and passed the impugned decision.

11. On 23.4.2020 the respondent no.
3, the Director, S.G.P.G.I. issued a letter to
the petitioner on his official e-mail ID of
1196 INDIAN LAW REPORTS ALLAHABAD SERIES
Director, NIFT whereby the petitioner was
informed that his case for extension of lien
was put up before the Governing Body i.e.
opposite party no. 4 at its meeting dated
17.4.2020 and after due deliberation it has
been decided that the lien cannot be granted
to the petitioner and he should immediately
join at S.G.P.G.I. latest by 30.4.2020
otherwise disciplinary proceedings will be
initiated against him.

12. As per learned counsel for the
petitioner
since
the
petitioner
was
discharging his duties of Campus Director
at NIFT, therefore, he could have, all of
sudden, not given up his duties at NIFT for
submitting his joining at S.G.P.G.I. The
petitioner
has,
however,
replied
the
aforesaid letter on 28.4.2020 to the
respondent no. 3 informing his inability to
join at S.G.P.G.I. in such a short notice,
therefore, requested some time to rejoin at
S.G.P.G.I.
by
15.6.2020.
When
the
petitioner did not receive any response of
his letter dated 28.4.2020, under the
compelling circumstances he submitted a
letter dated 5.5.2020 before the respondent
no. 3 seeking his voluntary retirement from
service w.e.f. 5.5.2020. When the petitioner
did not receive any response he again
preferred letter dated 9.6.2020 pressing his
application for voluntary retirement and for
making payment of his post retiral dues.

13. On 7.7.2020 the petitioner
received a letter dated 4.7.2020 wherein he
was informed that his request dated
5.5.2020 of voluntary retirement from
service has been rejected by the President,
S.G.P.G.I. and the direction has been issued
to
submit his
joining
at
S.G.P.G.I.
forthwith.

14. Learned counsel for the petitioner
has submitted that though the petitioner
fulfills all requisite conditions for grant of
voluntary retirement but no reason has been
assigned while rejecting his request.

15. Therefore, the petitioner has prayed
that this Court may kindly be pleased to
quash the order dated 17.4.2020 passed by
the respondent no. 4 (Annexure no. 3 to the
writ petition), 23.4.2020 and 4.7.2020 both
passed by respondent no. 2 & annexed as
Annexure nos. 2 & 1 respectively. He has
also prayed that the opposite parties be
directed
to
consider
the
petitioner's
application dated 5.5.2020 as fresh as per
S.G.P.G.I. Regulations and the petitioner be
paid all consequential service benefits. It has
also been prayed that the authorities of
S.G.P.G.I. be directed not to compel the
petitioner to join back at S.G.P.G.I. and no
disciplinary
proceedings
be
initiated
/
conducted / concluded against him.

16. Per contra, Sri A.N. Trivedi, learned
counsel for the S.G.P.G.I. has submitted that
when a statutorily constituted body is
entrusted with the power to take a decision in
respect of a particular matter then a collective
decision of statutory body is binding over the
opinion or permission of an individual
member, which is included even the
Chairman / President of the statutory body
who is required to chair the meeting.

17. Sri Trivedi has submitted that in
terms of Section 11 of SGPGIMS Act of
1983 the Chief Secretary of the Government
of U.P, is an ex officio President of the
Institute who has been bestowed with certain
specified functions. Section 11 of the Act of
1983 is extracted here under:

11(1) The Chief Secretary to the
Government of UP shall be President of the
Institute and shall also be Chairman of the
Governing Body.
9 All Dr. Bharat Sah Vs. S.G.P.G.I. of Medical Sciences, Lko & Ors.
1197

(2) The President shall, when
present, preside at the Meetings of the
Institute and shall have the following
powers and duties, namely:

a)
to
ensure
that
the
administration of the affairs of the Institute
are conducted in accordance with this Act
and the Rules and Regulations made there
under and to take such steps: as he deems
fit for the achievement of this object.

(b) to call for such information or
records relating to the

administration of the affairs of
the Institute as he thinks fit.

(c) to exercise such other powers
and perform such other duties as are
assigned to him by this Act or as may be
prescribed by Rules or laid down in the
Regulations."

18. From perusal of the provision, it is
apparent that the President is entitled to
discharge
certain
statutory
functions.
However, in terms of provisions contained
under Sl. No.5 in Schedule I of First
Regulations 2011, the sole domain of
considering the extension of lien beyond
Two Years has been vested with the
Governing Body of SGPGI.

19. In terms of the communication
dated 02.07.2019, the Petitioner's request
was placed before the Governing Body in
its Meeting dated 16/17.04.2020 and vide,
Agenda Item No.91.17, the Petitioner's
request for extending his lien was rejected
with direction to join by 30.04.2020
otherwise Disciplinary Proceedings shall be
initiated. The decision of the Governing
Body was communicated to the Petitioner,
vide
Letter
dated
23.04.2020.
The
Resolution of the Governing Body dated
16/17.04.2020
against
Agenda
Item
No.91.17 is extracted here under:

Agenda
Item
No.
Particulars
Deliberations
& Resolutions
91.1
7
Extension of lien
of Mr. Bharat
Shah, Associate
Superintendent
for another 3
years
"The
Governing
Body was
apprised that
Mr. Bharat
Shah
Associate
Superintenden
t had been
relieved wef
15.01. 2014
(forenoon) to
join on the
post of
Campus
Director at
National
Institute of
Fashion
Technology
(NIFT),
Ministry of
Textiles,
Government
of India Raebareli on
contract for
which lien for
the period of
02 years had
been allowed
after approval
of President
and 81"
Governing
Body dated
27.06.2014
1198 INDIAN LAW REPORTS ALLAHABAD SERIES
After
completion of
02 years of
lien period
Mr. Bharat
Shah had
again
requested to
extend the lien
for another 03
years w.ef.
16.01.2016.Th
e matter was
placed before
the 85
Governing
Body dated
10.03.2016
and after due
deliberation
Governing
Body had
approved the
extension of
lien of Mr.
Bharat Shah
for another 03
years i.e. upto
15.01.2019.
Thus he had
been given the
lien of 05
years in
totality.

 Mr Bharat
Shah had
again
requested for
extension of
lien for
another
period of 03
years on
expiry on
15.01.2019
which the
President had
directed that
the proposal
should be
placed before
the Governing
Body for
approval.

 The
Governing
Body
deliberated on
the matter and
decided this
lien cannot be
granted and
he should join
back latest by
30th April
2020
otherwise
disciplinary
proceeding
will be
initiated
against him
for
termination"

 Action: Chief
Medical
Superintenden
t

20. The Petitioner, vide Letter dated
28.04.2020 requested for extending the
joining time uptil 15.06.2020 and in
response
thereof,
the
Petitioner
was
required to join back with immediate effect
vide letter dated 08.05.2020. However, vide
another
Letter
dated
05.05.2020
the
9 All Dr. Bharat Sah Vs. S.G.P.G.I. of Medical Sciences, Lko & Ors.
1199
Petitioner
requested
for
Voluntary
Retirement.

21. The Institute, vide letter dated
08.05.2020 directed the petitioner to join at
SGPGI with immediate effect otherwise the
disciplinary proceedings would be initiated
in terms of the Resolution of the Governing
Body dated 16/17.04.2020. Eventually,
vide Order dated 04.07.2020 the Petitioner
was communicated with the decision of the
Competent
Authority
with
regard
to
rejection of his request for Voluntary
Retirement as the 'process' of initiating
disciplinary
proceedings
have
already
begun.

22. Feeling aggrieved with the
decision of the Governing Body dated
16/17.04.2020, its communicated dated
23.04.2020 and the rejection of his request
for Voluntary Retirement dated 04.07.2020,
the aforesaid Writ Petition has been filed
with a further request for commanding the
Respondents to consider the Petitioner's
request dated 05.05.2020 with regard to
Voluntary Retirement which has already
been rejected.

23. The petitioner has not challenged
the Office Order dated 09.10.2020, vide
which the disciplinary proceedings have
been initiated by suitably amending the
Writ Petition. However, an Application for
Interim Relief dated 09.11.2020 has been
filed inter-alia praying for staying the
impugned orders dated 04.07.2020 and
23.04.2020 passed by respondent No.2.

24. Sri Trivedi has further submitted
that provisions contained at Sl. No. 5 of
Schedule I of First Regulations 2011
empowers Governing Body of SGPGI to
consider the extension of lien of an
Employee beyond Two years. Section 11 of
the SGPGI Act of 1983 provides for limited
power of the President of Governing Body.
The alleged extension of Three Years with
effect from 16.01.2019, vide Office Order
dated 03.05.2019 issued by the Chief
Administrative Officer of SGPGI
as
recorded by the Petitioner is misconceived
in terms of its amendment of the
clarification, vide Order dated 02.07.2019
whereby the Office Order dated 03.05.2019
has been amended to the effect that instead
of granting permission for extension of
service of the Petitioner for Three Years
with effect from 16.01.2019 is substituted
with "Placing the Petitioner's request
before the Competent Authority i.e. the
Governing Body".

25. In terms of Schedule I of First
Regulations 2011 read with the Order dated
02.07.2019, the Governing Body having
resolved not to extend the Petitioner's lien
and rather directed him to join the Institute
by
30.04.2020
failing
which
the
disciplinary proceedings would be initiated,
the Petitioner was under obligation to
comply the directions of his Employer.

26. The Petitioner has failed to
substantiate as to how the Resolution of the
Governing Body dated 16/17.04.2020 is
allegedly erroneous or arbitrary, either a
perusal thereof would indicate that the
issue of the Petitioner's request for
extending his lien for Three Years beyond
16.01.2019
was
deliberated
after
considering the President's Note and
consequently a conscious decision was
taken for not extending the Petitioner's lien.

27. The continuation of Petitioner's
lien with effect from 16.01.2019 up till
30.04.2020 i.e. when he was required to
submit his joining, the Petitioner has
neither been penalized nor any adverse
1200 INDIAN LAW REPORTS ALLAHABAD SERIES
decision has been taken for the period when
his lien had expired i.e. 16.01.2019 up till
the date when he was required to submit his
joining at SGPGI i.e. 30.04.2020.

28. The Resolution of the Governing
Body dated 16/17.04.2020 against Agenda
Item No.91.17 with regard to initiation of
disciplinary proceedings of termination of
his service in case he fails to join his
services on 30.04.2020 are not conclusive
as the same is dependent upon the Enquiry
Report and the decision of the Disciplinary
Authority. Even otherwise, the disciplinary
proceedings initiated, vide Office Order
dated
09.04.2020
having
not
been
challenged in the main Writ Petition, the
same could not be the subject matter of the
dispute raised by means of the instant Writ
Petition. Accordingly, it is apparent that the
Resolution of Respondent No.4 1.e. the
Governing Body of SGPGI is neither
arbitrary nor mechanical but the same have
been passed with total application of mind
strictly in accordance with Rules and
Regulations of the SGPGI.

29. The General Rule for accepting
the Voluntary Retirement is basically in
two folds viz. (a) the incumbent having
attained a particular age or have completed
the requisite period of service; AND (b) no
disciplinary
proceedings
having
been
initiated or pending.

30. The General Rule of Law would not
be applicable on the Petitioner who is
governed by Service Regulations of SGPGI
namely First Regulations of 2011 and
Regulation
95
whereof,
categorically
provides that the request for Voluntary
Retirement can be rejected if disciplinary
proceeding is pending or in process against
the employee. Regulation 95 reads as under :

95(1) "A faculty member, officer
or employee may seek voluntary retirement
by giving notice of three months to the
appointing authority after attaining the age
of fifty years or after completing a
qualifying service of twenty years;

Provided that the appointing
authority may refuse such request for
voluntary retirement within the period of
notice if a disciplinary proceeding is
pending or
in
process
against
the
employee.

31. According to Oxford Dictionary,
the word "Process" has been defined as "a
continuous and regular action or succession
of actions taking place or carried on in a
definite
manner
and
leaving
to
accomplishment of some results". The
synonym of the word "succession" is
"sequence".

32. The Hon'ble Supreme Court,
although in case involving the question of
process of manufacturing pertaining the
revenue of the Government (Excise) in the
case CCE Vs Rajasthan State Chemical
Work, reported (1991) 4 SCC 473; has held
that the "Process" include any activity or
operation which is an essential requirement
and is so related to the further operation
for the end result would also be a
process....."

33. The Petitioner's reliance on the
decision of the SGPGI with regard to
accepting
the
resignation
of
various
Doctors in the recent past, itself cannot be a
ground to maintain the instant Writ Petition
as request of Voluntary Retirement of
every
Employee/
Officer
is
to
be
considered on its peculiar facts and
circumstances.
9 All Dr. Bharat Sah Vs. S.G.P.G.I. of Medical Sciences, Lko & Ors.
1201

34. There is a conscious decision of
the Statutory Authority i.e. the Governing
Body
of
SGPGI
for
rejecting
the
Petitioner's request for extension of his lien
after
due
deliberations
and
after
considering
the
entire
facts
and
circumstances including the note of then
President of the Governing Body, the
Petitioner's contention that the same is non
speaking is patently misconceived as in
terms of the Judgment of this Hon'ble Court
in the case of Aditya Swarup Pandey Vs
Srawasthi Gramin Bank and Others
reported in (2019) (37) LCD 2327 the
reasoning of every individual member is
not to be necessarily reproduced in the
decision of a Statutory Body Corporate.

35. It is further no more res-integra
that when a decision has to be taken by a
Statutory Body consisting of various
Members,
any
opinion/
approval/permission
of
an
individual
member which includes the Chairman/
President of the Statutory Body without
approval of the Statutory Body i.e. the
Governing Body of S.G.P.G.I. as a whole
Body Corporate would not vest any right
on an employee. Further, the notings are
mere expression of opinion of an individual
and shall not vest any right on the
incumbent.

36. While replying the aforesaid
contention of Sri A.N. Trivedi, Sri Sunil
Sharma has reiterated his earlier submissions
and further submitted that, however, the
disciplinary proceedings against the petitioner
has been initiated but no charge-sheet has
been issued and the disciplinary proceedings
can only be said to be pending on the service
of charge-sheet. Therefore, in the present case
it may not be presumed that any departmental
proceeding is pending against the petitioner.
Therefore, Sri Sunil Sharma has submitted
that the impugned orders are patently illegal,
arbitrary and uncalled for and the same are
liable to be set aside.

37. Having heard the learned counsel
for the parties and perused the material on
record.

38. One of the questions before the
Court is that as to whether if any decision is
taken by the Chairman / President of the
Statutory Body as an individual capacity and
pursuant to that decision if the employee acts
upon further and later on if such decision is
not accepted by the statutory body the
conduct of an employee acting upon the
decision of an individual authority would be a
mis-conduct or a bona fide act?

39. Further, as to whether the
information provided to the employee that
if he would not follow the direction of the
superior authority the departmental inquiry
for awarding major punishment would be
initiated may be treated as initiation of
departmental inquiry or the departmental
inquiry is said to have been initiated after
service
of
charge-sheet
upon
the
incumbent?

40. Further more, as to whether the
initiating the departmental inquiry and
appointing the inquiry officer directing him
to conclude the departmental inquiry within
stipulated time, however, without issuing
the charge-sheet, after the application of the
petitioner seeking voluntary retirement may
be treated as bar in view of the Regulation
95 of the General Rules of the SGPGI for
accepting the voluntary retirement in the
light of twin conditions of such Regulation
viz.

(a) the incumbent having attained
the particular age or having completed the
1202 INDIAN LAW REPORTS ALLAHABAD SERIES
requisite period of service i.e. 20 years;
and

(b) no disciplinary proceedings
having been initiated or pending.

41. There is no quarrel on the point
that the petitioner was granted extension of
service for three years w.e.f. 16.1.2019 for
holding post of Campus Director, NIFT by
the President, SGPGI subject to the
approval of the Governing Body. However,
the Governing Body has refused such
extension. The petitioner in a bonafide
manner continued on the post of Campus
Director, NIFT, Raebareli legitimately
expecting that since the President of
SGPGI is also President / Chairman of the
Governing Body of SGPGI, therefore, the
said decision of the President would be
upheld by the Governing Body. There is no
doubt that the decision of the Governing
Body would be binding over the opinion or
permission of an individual member
including the Chairman / President of the
statutory body but at the same time it may
not be said to be any lapse on the part of
the petitioner to continue on the post of
Campus Director, NIFT pursuant to the
permission being granted by the President
for holding the post for further three years
w.e.f. 16.1.2019. Therefore, the conduct of
the petitioner continuing on the post of
Campus Director, NIFT, Raebareli is bona
fide conduct in view of the facts and
circumstances of the present case.

42.

Admittedly,
the
petitioner
submitted an application for voluntary
retirement
on
5.5.2020
when
no
departmental inquiry was pending against
him. Therefore, the petitioner was fulfilling
both the conditions of concerning general
rule for accepting voluntary retirement
inasmuch as the petitioner has already
attained the required age and has completed
the requisite period of service and no
disciplinary
inquiry
was
initiated
or
pending against the petitioner at that point
of time.

43. As a matter of fact, the
departmental inquiry can be said to have
been initiated against the petitioner vide
office order dated 9.10.2020 (Annexure
C.A.-1 to the counter affidavit dated
11.11.2020) which
provides that the
departmental inquiry is being initiated
against the petitioner under Rule 7 of 1999
Rules appointing the inquiry officer with
the direction that the said inquiry be
concluded within a period of two months.
The impugned order dated 23.4.2020
(Annexure no. 2 to the writ petition) is a
sort of warning to the effect that if the
petitioner does not submit his joining at
SGPGI on or before 30.4.2020 the
departmental inquiry for awarding major
punishment would be initiated against him.

44. The law is trite on the point that
the proceedings of departmental inquiry
starts when the charge-sheet is provided to
the incumbent seeking his explanation /
defense reply. The rationale behind it is
very clear that the disciplinary authority
can take any decision on the conduct of an
employee or can absolve him considering
his / her bona fide, or could pass any
alternative or substitute order in stead of
issuing charge-sheet for conducting full
fledged disciplinary inquiry. However, as
soon as the charge-sheet is provided to the
incumbent indicating the charges then it
would be the very first stage of initiation of
departmental inquiry.

45. Therefore, the impugned order
dated 23.4.2020 (Annexure no. 2) could not
be treated as if the departmental inquiry has
9 All Dr. Bharat Sah Vs. S.G.P.G.I. of Medical Sciences, Lko & Ors.
1203
been initiated against the petitioner. It was,
at the best, a warning to the effect that if
the petitioner does not obey the direction of
the competent authority the departmental
inquiry against the petitioner for awarding
major punishment may likely to be
initiated. Therefore, the said letter may not
be treated that the departmental inquiry was
initiated against the petitioner and in the
meantime the petitioner had submitted his
application dated 5.5.2020 for seeking
voluntary retirement. Therefore, his case
was fit to accept the voluntary retirement in
terms of Regulation 95 of General Rules of
SGPGI.

46. Besides, the letter dated 9.10.2020
(Annexure no. C.A.-1 to the counter
affidavit dated 11.11.2020) is providing
that the departmental inquiry has been
initiated against the petitioner and inquiry
officer has been appointed with the
direction to conclude the departmental
inquiry within a period of two months.
However, by that time no charge-sheet was
provided to the petitioner. The said office
order may also not to be treated as
initiation of departmental inquiry but if the
intention of the competent authority is
considered to the effect that the authority
has made up its mind to initiate the
departmental inquiry against the petitioner
appointing inquiry officer, even then the
petitioner
had
already
submitted
his
application dated 05.05.2020 for seeking
voluntary retirement. Therefore, there was
no legal impediment with the disciplinary
authority not to accept the application of
the petitioner dated 5.5.2020 seeking
voluntary retirement in terms of Regulation
95 of General Rules of SGPGI and
rejecting the said request of the petitioner
on the pretext that the departmental inquiry
against the petitioner was initiated, is per se
illegal.

47. During the course of the
arguments, I have considered one relevant
aspect which has been indicated in para 33
of the writ petition whereby it has been
categorically indicated that the post of the
petitioner i.e. Associate Superintendent
(Non-Medical) has been declared as 'Dying
Cadre' and after his joining at NIFT,
Raebareli on 15.1.2014 none has been
posted on that post and that post will not
exist after the retirement of the petitioner
on 3.11.2023, the date of superannuation of
the petitioner. By means of para 35 of the
counter affidavit dated 11.11.2020, the
opposite party replied the contents of para
33 of the writ petition submitting that
merely because the petitioner's post at
SGPGI has been declared as 'Dying Cadre',
it does not give a right to the petitioner to
disobey the direction of the superior.
However, it is also clear from para 35 of
the counter affidavit that neither anyone
has been posted on the post of Associate
Director (Non-Medial) at SGPGI after
15.1.2014 when the petitioner submitted his
joining at NIFT, Raebareli nor any person
would be appointed on such post after the
superannuation of the petitioner and
admittedly such post has been declared as
'Dying Cadre'.

48. Considering the facts and
circumstances of the issue in question in
entirety, I do not find any cogent reason for
not accepting the application of the
petitioner dated 5.5.2000 whereby the
petitioner has sought voluntary retirement
when he was fulfilling the twin conditions
of Regulation 95 of General Rules of
SGPGI i.e. he has already completed the
required age and completed the requisite
period of service and no disciplinary
inquiry was initiated or pending against
him at that point of time. For the repetition
sake I again say that the departmental
1204 INDIAN LAW REPORTS ALLAHABAD SERIES
inquiry can be said to have been initiated or
pending w.e.f. the date when the chargesheet is issued against an employee and
there is no doubt that on 5.5.2020 no
departmental
inquiry
/
disciplinary
proceedings was initiated or pending
against the petitioner. I also fail to
understand as to why the petitioner was
being forced to submit his joining on such
post which has been declared as 'Dying
Cadre' and none was posted on such post
after
15.1.2014
when
the
petitioner
submitted his joining at NIFT, Raebareli
nor any person would be holding such post
after 3.11.2023, the date of superannuation
of the petitioner.

Apex Court in re: Uco Bank &
Another vs. Rajinder Lal Capoor reported
in (2007) 6 SCC 694 has held as under :

"The aforementioned Regulation,
however, could be invoked only when the
Disciplinary Proceedings had clearly been
initiated prior to the respondent's ceases to
be in service. The terminologies used therein
are of seminal importance. Only when a
disciplinary proceeding has been initiated
against an officer of the bank despite his
attaining the age of superannuation, can the
disciplinary proceeding be allowed on the
basis of the legal fiction created thereunder,
i.e., continue "as if he was in service. Thus,
only when a valid departmental proceeding is
initiated by reason of the legal fiction raised
in terms of the said provision, the delinquent
officer would be deemed to be in service
although he has reached his age of
superannuation.
The
departmental
proceeding, it is trite law, is not initiated
merely by issuance of a show cause notice. It
is initiated only when a chargesheet is issued
(See Union of India etc. etc. v. K.V.
Jankiraman, etc. etc. reported in AIR 1991
SC 2010). This aspect of the matter has also
been considered by this Court recently in
Coal India Limited & others v. Saroj Kumar
Mishra [2007 (5) SCALE 724] wherein it was
held that date of application of mind on the
allegations levelled against an officer by the
Competent Authority as a result whereof a
chargesheet is issued would be the date on
which the disciplinary proceedings said to
have been initiated and not prior thereto.
Pendency of a preliminary enquiry, therefore,
by itself cannot be a ground for invoking
Clause 20 of the Regulations. Albeit in a
different fact situation but involving a similar
question of law in Coal India Ltd. (supra) this
Court held :

"13. It is not the case of the
appellants
that
pursuant
to
or
in
furtherance of the complaint received by
the vigilance department, the competent
authority had arrived at a satisfaction as is
required in terms of the said circulars that
a chargesheet was likely to be issued on the
basis of a preliminary enquiry held in that
behalf or otherwise.

14. The circular letters issued by
the appellants put restrictions on a
valuable right of an employee. They,
therefore, are required to be construed
strictly. So construed there cannot be any
doubt. whatsoever that the conditions
precedent contained therein must be
satisfied before any action can be taken in
that regard."

It was further more observed
that:

"20. A departmental proceeding
is ordinarily said to be initiated only when
a chargesheet is issued."

49. In view of what has been
considered above the impugned orders
9 All Sushil Kumar Gautam & Ors. Vs. State of U.P. & Ors.
1205
dated 4.7.2020 whereby the request of the
petitioner for voluntary retirement from
service has been turned down, the decision
of opposite party no. 4 dated 17.4.2020
communicated
to
the
petitioner
on
23.4.2020, whereby the petitioner has been
informed that if the petitioner does not
submit
his
joining
pursuant
to
the
impugned resolution taken in 91st meeting
of the Board of Governors, SGPGI by
30.4.2020 the disciplinary proceedings
shall be initiated against the petitioner for
terminating
his
services,
which
are
contained as Annexure nos. 1, 2 and 3 to
the writ petition are patently illegal,
arbitrary, discriminatory and violative of
Article 14,16 and 21 of the Constitution of
India so those are not sustainable in the
eyes of law.

50. Accordingly the writ petition is
allowed.

51. The order dated 4.7.2020,
23.4.2020 passed by the opposite party no.
2 and the resolution of 91st Governing
Body meeting of SGPGI, Lucknow dated
17.4.2020 as contained in Annexure nos. 1
to 3, so far as it relates to the petitioner are
hereby set aside / quashed.

52. A writ in the nature of mandamus
is issued commanding the opposite parties
to reconsider the application of the
petitioner dated 5.5.2020 whereby the
petitioner has sought voluntary retirement
within a period of two months ignoring the
earlier impugned orders, as aforesaid, and
intimate the petitioner such decision
forthwith.

53. The petitioner shall also be
entitled for all consequential service
benefits admissible as per law.

54. Till the appropriate decision is
taken the petitioner shall neither be
compelled
to
submit his
joining
at
S.G.P.G.I. nor any coercive action shall be
taken against him.

55. Before parting with, I put a note
of appreciation for Ms. Shama Parveen,
Law Clerk of this Court, for her useful
assistance.
----------
(2021)09ILR A1205
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.08.2021

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

WRIT A No. 20277 of 2019

Sushil Kumar Gautam & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri B.S.Pandey

Counsel for the Respondents:
C.S.C.

A. Service Law - Upgrade and arrears of
grade pay - Government order dated
16.11.2011 - Where all things are equal
i.e.