# Dr. Rajendra Kumar Srivastava v. State of U.P. & Ors

- **Citation:** (2023) 5 ILRA 1730
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-08
- **Case number:** Writ A No. 4293 of 2022
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-rajendra-kumar-srivastava-v-state-of-u-p-ors-50250
- **Pages:** 38

## Headnote

Service Law- U.P. Government Servant
(Discipline & Appeal) Rules, 1999, Statute
9.07, Statute 9.04 -Mainly because the
petitioners were appointed during the
period of particular Vice Chancellor, and
there were certain allegations against
him, cannot itself lead to any conclusion
that the appointment made under his
regime were illegal and arbitrary- no
allegation
that
the
petitioners
had
misrepresented about their educational
qualifications
or
were
somehow
responsible
for
getting
themselves
appointed- after permitting a person to
continue in service for a long time, the
selection
cannot
be
cancelled,
or
services cannot be terminated due to
some
infirmities
in
the
selectionPetitioners working for the last 6 to 7
years and the orders of termination have
been held to be illegal and arbitrary,
they are entitled to all consequential
benefits including the back wages from
the date of termination of their services.
(Para 80 & 82)

Writ Petition allowed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,677 of 124,805. This is a partial read: ask again with offset=39677 for what follows._

1730 INDIAN LAW REPORTS ALLAHABAD SERIES
unnecessary issues. Costs should invariably
follow
the
even.
Costs
must
be
appropriately apportioned. Special reasons
must be assigned if costs are not being
awarded.
Costs
should
be
assessed
according to the rule in force".

39. Apart from above, in a catena of the
decisions, Supreme Court has held that the
Court can award exemplary costs to the litigants
who
have
approached
the
Court
for
commission and omission of State authorities.
While no litigants can derive any benefit on
account of pendency while protection of interim
order has been there, the litigants can also not
be prejudiced for non-consideration of their
case for a service benefit, which is otherwise
guaranteed to them as condition of service
under the rules, just for wrongful action or
inaction on the part of respondent authorities.

40. In the case of RamRameshwari Devi
and others vs. Nirmala Devi and others, (2011)
8 SCC 249, the Court observed that "in order to
curb uncalled for and frivolous litigation, the
courts have to ensure that there is no incentive
or motive for uncalled for litigation. It is a
matter of common experience that court's
otherwise scarce and valuable time is
consumed or more appropriately, wasted in a
large number of uncalled for cases".

41. However, taking lenient view in the
matter with the hope that State would do the
needful to ensure that its officers are
reasonable and logical while dealing with
matters in discharge of their administrative
duties, I quantify the cost as Rs.25,000/- only
to be paid to the petitioner within two months
from today. It will be open for the State to
recover the cost from the erring officials.

42. In view of the above, writ petition
succeeds and is allowed with cost as
quantified and directed above. The order
passed by the District Inspector of Schools
dated 25.9.2018 (Annexure-15 to the writ
petition) is hereby quashed. The District
Inspector of Schools is directed to accord
financial approval to the appointment of the
petitioner as Assistant Clerk in the
institution, who has already been appointed
by the Committee of Management under its
order dated 27.7.2016 pursuant to which
petitioner submitted his joining on 1.8.2016
and has continuously been working in the
institution as such.

43. The financial approval to the
appointment of the petitioner will relate
back to the date 27.7.2016 and petitioner
would be entitled to salary with effect from
1.8.2016.

44. The Committee of Management
shall calculate the entire arrears of salary
after the approval is accorded. The District
Inspector of Schools will ensure that
current salary is paid to the petitioner
forthwith and the arrears of salary shall also
cleared within three months of such
approval order.
----------
(2023) 5 ILRA 1730
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.05.2023

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ A No. 4293 of 2022
With other cases

Dr. Rajendra Kumar Srivastava
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Vijay Dixit
5 All. Dr. Rajendra Kumar Srivastava Vs. State of U.P. & Ors.
1731
Counsel for the Respondents:
C.S.C., Atul Kumar Dwivedi

Service Law- U.P. Government Servant
(Discipline & Appeal) Rules, 1999, Statute
9.07, Statute 9.04 -Mainly because the
petitioners were appointed during the
period of particular Vice Chancellor, and
there were certain allegations against
him, cannot itself lead to any conclusion
that the appointment made under his
regime were illegal and arbitrary- no
allegation
that
the
petitioners
had
misrepresented about their educational
qualifications
or
were
somehow
responsible
for
getting
themselves
appointed- after permitting a person to
continue in service for a long time, the
selection
cannot
be
cancelled,
or
services cannot be terminated due to
some
infirmities
in
the
selectionPetitioners working for the last 6 to 7
years and the orders of termination have
been held to be illegal and arbitrary,
they are entitled to all consequential
benefits including the back wages from
the date of termination of their services.
(Para 80 & 82)

Writ Petition allowed. (E-15)

List of Cases cited:

1. Whirlpool Corpn. Vs Registrar of Trade Marks,
(1998) 8 SCC 1 at page 9

2. Mahipal Singh Tomar Vs St.of U.P., (2013) 16
SCC 771 : (2014) 3 SCC (L&S) 610 : 2013 SCC
OnLine SC 1135 at page 796

3. Md. Zamil Ahmed Vs St.of Bihar, (2016) 12
SCC 342 : (2017) 1 SCC (L&S) 396 : 2016 SCC
OnLine SC 416 at page 34

4. Vikas Pratap Singh Vs St.of Chhattisgarh,
(2013) 14 SCC 494 : (2013) 3 SCC (L&S) 100 :
2013 SCC OnLine SC 599 at page 502

5. Saurabh Pal Vs The Chancellor, Veer Bahadur
& ors.Appeal (Civil) 596 of 2008 decided on
22/01/2008

6. Basavaiah (Dr.) Vs Dr. H.L. Ramesh, (2010) 8
SCC 372

7. Ashok Kumar Sonkar vs U.O.I.& ors.(2007)
4SCC 54

8. Mohd. Abul Lash Vs St.of U.P. & ors.

9. Nahar Singh & ors.Vs St.of U.P. & ors.and
Savitri Devi & ors.Vs St.of U.P. & ors.

10. Nisha Devi Vs St.of H.P., (2014) 16 SCC 392

11. Vikas Pratap Singh Vs St.of Chhattisgarh,
(2013) 14 SCC 494

(Delivered by Hon'ble Alok Mathur, J.)

1. The challenge has been made in this
bunch of writ petitions to the order of
cancellation of selection resulting in
termination of their services vide dated
06/07/2022 passed by the respondent
University after conducting an enquiry. The
common ground for cancellation of their
selection
was
the
lack
of
essential
qualifications at the time of their selection
with
regard
to
their
educational
qualifications in the year 2014.

2. In the present bunch of writ
petitions all the petitioners are teachers
having been selected in the Dr. Shakuntala
Mishra National Rehabilitation University
pursuant
to
the
advertisement
dated
17/02/2014.
They
submitted
relevant
documents with regard to the qualifications
and
appeared
before
a
screening
committee, and subsequently appeared in
the
interview
before
the
selection
committee
which
recommended
their
candidature
for
appointment.
The
recommendations were duly placed before
the Executive Council of the University
pursuant to which they were appointed and
were continuing till their services were
1732 INDIAN LAW REPORTS ALLAHABAD SERIES
terminated by means of the impugned
orders in the respective writ petitions.

3. The bunch of the cases have been
heard together and are being decided
together by a common judgement as the
issues involved are common except the
aspect
pertaining
to
the
respective
educational qualifications.

4.
The
impugned
orders
of
cancellation of selection have been passed
by the Vice Chancellor of Dr. Shakuntala
Mishra National Rehabilitation University,
Lucknow which very candidly recites that
in the 5th meeting of the General Body an
enquiry was instituted against the previous
Vice Chancellor Dr Nishith Rai and all the
charges against him were proved and he
was found guilty of administrative and
financial irregularities. After seeking legal
opinion, it was decided that all the
appointments made during his tenure would
be enquired on a case-to-case basis. It
further states that the executive committee
had appointed a three-member committee
which has submitted its report where it has
been found that the appointments were
made without following the rules of
reservation, and no approval was sought
from the visitor for appointment of the
panel of experts and that persons were
appointed despite the fact that they did not
have the requisite API score which was
contrary to the rules.

5. The Executive Council in its 35th
meeting held on 07/10/2021 decided to
constitute
a
2-member
committee
consisting of 2 retired Judges of the High
Court to enquire into all the appointments
made by the erstwhile Vice Chancellor.
The enquiry was conducted by the said
committee who submitted their report
which was placed before the Executive
Council and was duly approved in its 38th
meeting.

6. Show cause notice was given to the
petitioners seeking their response. The
response
was
placed
before
another
committee consisting of a retired High
Court Judge and subject specialist namely
Professor Dhananjai Yadav, in Charge of
the Recruitment Cell, Allahabad Central
University, Prayagraj. The committee made
its recommendations on 9.6.2022 to the
University, which was accepted by the
executive
committee.
The
committee
concluded that the petitioners did not fulfil
the prescribed qualifications on the date of
the advertisement and hence their services
were terminated. It was further provided
that considering that all the petitioners have
worked for a period of 6-7 years, they
would be eligible to apply in the fresh
advertisement which would be issued and
in case they are selected, their pay and
allowances would be protected.

7. Sri Sudeep Seth, Senior advocate
appearing for the respondent University
raised preliminary objections regarding the
maintainability of the writ petitions. He
submitted
that
the
Uttar
Pradesh
Government
Servants
(Discipline
and
Appeal) Rules, 1999 were applicable on the
respondent University, which provide for
an alternative remedy of appeal against the
order of termination, while the petitioners
have straight-away approached this Court
under Article 226 of the Constitution of
India and submitted that the petitions are
liable to be dismissed on the ground of
alternative
remedy.
It
was
further
contended that the petitioners have another
5 All. Dr. Rajendra Kumar Srivastava Vs. State of U.P. & Ors.
1733
alternate remedy under Section 7 of the Dr
Shakuntala Mishra National Rehabilitation
University (For Differently Abled) Uttar
Pradesh Act, 2009 (hereinafter referred to
as the Act of 2009) before the visitor.

8.
Counsel
for
the
petitioners
responding to the plea of alternate remedy,
submitted
that
The
Uttar
Pradesh
Government
Servant
(Discipline
and
Appeal) Rules, 1999 (hereinafter referred
to as the Rules of 1999) are applicable, but
the respondent University itself did not
proceed in terms of the said rules as neither
any charge sheet was given to them, nor was the
enquiry
conducted
in
consonance
with
provisions contained in Rule 7 of the said rules,
nor was the complete enquiry report submitted
by them along with a show cause notice. It has
further been submitted that once the respondents
themselves had failed to adhere to the Rules of
1999 it is not open for them to contend that the
petitioners should be directed to follow the said
rules. It has been submitted that the petitioners
could have been relegated to the remedy of an
appeal under the Rules of 1999 only when the
proceedings would have been conducted under
the said rules and not otherwise.

9. It was further submitted that alternate
remedy is not an absolute bar, and the High
Court in exercise of its powers under Article
226 of the Constitution of India would
entertain petitions where, on the face of it, it
can be demonstrated that the decision-makings
process suffers from manifest illegality or has
been conducted in violation of principles of
natural justice in the most arbitrary manner.

10. To consider the preliminary
objection raised by the respondent with
regard to the maintainability of the writ
petition on the ground of availability of an
efficacious alternative remedy of an appeal
under the Rules of 1999, it is undisputed
that the respondent University itself did not
adhere/follow to the Rules of 1999 while
proceeding against the petitioners. Once the
proceedings have not been initiated or
conducted in terms of Rule of 1999, by the
University itself then it does not lie upon
them to raise an objection, that the
petitioners should be required to follow the
said rule. An appeal would lie under the
Rules of 1999 when the proceedings are
conducted under the said rules. When the
proceedings are conducted under some
other provision then the petitioners cannot
be asked to follow the Rules of 1999 and
resort to the remedy of an appeal under
Rule 11 of the said rules. Learned Counsel
for
the
respondent
University
fairly
submitted that the proceedings against the
petitioners were not conducted under the
Rules of 1999, then the natural corollary
would follow, and remedy of Appeal under
the Rules of 1999 would not available to
the petitioners and hence the preliminary
objection of the respondent with regard to
availability of alternative remedy in this
regard fails.

11. Secondly, the law with regard to
maintainability of writ petition despite
existence of alternate remedy has been well
settled. The High Courts can entertain a
writ petition despite the existence of an
adequate alternative remedy where there
are allegations of breach of fundamental
rights, or violations of principles of natural
justice or that the order under challenge is
wholly without jurisdiction. In the present
case, the ground of challenge to the order
of termination is that no proper opportunity
of hearing was granted to the petitioners,
1734 INDIAN LAW REPORTS ALLAHABAD SERIES
the enquiry was done in various stages by
different set of persons for which there is
no provision either in the rules or the
regulations of the University and apart
from that the entire proceedings were
vitiated by mala-fide as merely because the
petitioners have been appointed under the
regime of the erstwhile Vice Chancellor
who is alleged to have conducted certain
misconducts, as a retaliatory measure, all
the appointments made under him was
sought to be scrutinised. It is stated that
such exercise of police power is not vested
under the provisions of the act or rules of
the University, and accordingly in regard to
such facts writ petition under Article 226
would be maintainable.

12. The power of the High Court to
issue prerogative writs was dealt in by the
Supreme Court the case of Whirlpool
Corpn. v. Registrar of Trade Marks,
(1998) 8 SCC 1 at page 9 and held as
under:-

"14.
The
power
to
issue
prerogative writs under Article 226 of the
Constitution is plenary in nature and is not
limited by any other provision of the
Constitution. This power can be exercised
by the High Court not only for issuing writs
in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari
for the enforcement of any of the
Fundamental Rights contained in Part III
of the Constitution but also for "any other
purpose".

15. Under Article 226 of the
Constitution, the High Court, having
regard to the facts of the case, has a
discretion to entertain or not to entertain a
writ petition. But the High Court has
imposed upon itself certain restrictions one
of which is that if an effective and
efficacious remedy is available, the High
Court would not normally exercise its
jurisdiction. But the alternative remedy has
been consistently held by this Court not to
operate as a bar in at least three
contingencies, namely, where the writ
petition has been filed for the enforcement
of any of the Fundamental Rights or where
there has been a violation of the principle
of natural justice or where the order or
proceedings are wholly without jurisdiction
or the vires of an Act is challenged. There
is a plethora of case-law on this point but
to cut down this circle of forensic
whirlpool, we would rely on some old
decisions of the evolutionary era of the
constitutional law as they still hold the
field.

16.Rashid Ahmed v. Municipal
Board, Kairana [1950 SCC 221 : AIR 1950
SC 163 : 1950 SCR 566] laid down that
existence of an adequate legal remedy was
a factor to be taken into consideration in
the matter of granting writs. This was
followed by another Rashid case, namely,
K.S. Rashid & Son v. Income Tax
Investigation Commission [AIR 1954 SC
207 : (1954) 25 ITR 167] which reiterated
the above proposition and held that where
alternative remedy existed, it would be a
sound exercise of discretion to refuse to
interfere in a petition under Article 226.
This proposition was, however, qualified by
the significant words, "unless there are
good grounds therefor", which indicated
that alternative remedy would not operate
as an absolute bar and that writ petition
under Article 226 could still be entertained
in exceptional circumstances.

17. A specific and clear rule was
laid down in State of U.P. v. Mohd. Nooh
5 All. Dr. Rajendra Kumar Srivastava Vs. State of U.P. & Ors.
1735
[AIR 1958 SC 86 : 1958 SCR 595] as
under:

"But this rule requiring the
exhaustion of statutory remedies before the
writ will be granted is a rule of policy,
convenience and discretion rather than a
rule of law and instances are numerous
where a writ of certiorari has been issued
in spite of the fact that the aggrieved party
had other adequate legal remedies."

18.
This
proposition
was
considered by a Constitution Bench of this
Court in A.V. Venkateswaran, Collector of
Customs v. Ramchand Sobhraj Wadhwani
[AIR 1961 SC 1506 : (1962) 1 SCR 753]
and was affirmed and followed in the
following words:

"The passages in the judgments
of this Court we have extracted would
indicate (1) that the two exceptions which
the learned Solicitor General formulated to
the normal rule as to the effect of the
existence of an adequate alternative
remedy were by no means exhaustive, and
(2) that even beyond them a discretion
vested in the High Court to have
entertained the petition and granted the
petitioner
relief
notwithstanding
the
existence of an alternative remedy. We
need only add that the broad lines of the
general principles on which the Court
should act having been clearly laid down,
their application to the facts of each
particular
case
must
necessarily
be
dependent on a variety of individual facts
which must govern the proper exercise of
the discretion of the Court, and that in a
matter which is thus pre-eminently one of
discretion, it is not possible or even if it
were, it would not be desirable to lay down
inflexible rules which should be applied
with rigidity in every case which comes up
before the Court."

19. Another Constitution Bench
decision in Calcutta Discount Co. Ltd. v.
ITO, Companies Distt. I [AIR 1961 SC 372
: (1961) 41 ITR 191] laid down:

"Though the writ of prohibition
or certiorari will not issue against an
executive authority, the High Courts have
power to issue in a fit case an order
prohibiting an executive authority from
acting without jurisdiction. Where such
action of an executive authority acting
without jurisdiction subjects or is likely to
subject a person to lengthy proceedings
and unnecessary harassment, the High
Courts will issue appropriate orders or
directions to prevent such consequences.
Writ of certiorari and prohibition can issue
against the Income Tax Officer acting
without jurisdiction under Section 34,
Income Tax Act."

20. Much water has since flown
under the bridge, but there has been no
corrosive effect on these decisions which,
though old, continue to hold the field with
the result that law as to the jurisdiction of
the High Court in entertaining a writ
petition
under
Article
226
of
the
Constitution, in spite of the alternative
statutory
remedies,
is
not
affected,
specially in a case where the authority
against whom the writ is filed is shown to
have had no jurisdiction or had purported
to usurp jurisdiction without any legal
foundation.

21. That being so, the High Court
was not justified in dismissing the writ
petition at the initial stage without
examining the contention that the showcause notice issued to the appellant was
wholly without jurisdiction and that the
Registrar, in the circumstances of the case,
was not justified in acting as the
"Tribunal".
1736 INDIAN LAW REPORTS ALLAHABAD SERIES

In
the
case
of
Centurary
Spinning and Manufacturing Co. Ltd. v.
Ulhasnagar Municipal Council, (1970) 1
SCC 582, the Apex Court found that the
parties claiming to be aggrieved by the
action of a public body or authority on the
plea that the action is unlawful, high
handed, arbitrary or unjust is entitled to a
hearing of writ petition.

In the case of Nathi Mal Ram
Sahai Mal v. V.C., Meerut, 1998 UPLBEC
161, the Apex Court held that the existence
of alternative remedy has been held to be
no bar where it is alleged that the provision
is ultra vires or action is in violation of the
Principle of natural justice.

The learned counsel for the
petitioner further placed reliance upon the
case of Dr. Shyam Narain Pandey v. V.C.
Gorakhpur University, 1985 UPLBEC 99,
in which the impugned order was found to
be wholly void and ineffectual under law,
the Apex Court observed that the writ
petition cannot be dismissed on the ground
of alternative remedy after hearing has
been done on merits.

31. In the case of Hirdai Narain
v. Income Tax Officer, Bareily, AIR 1971
SC 33, the petitioner was having an
alternative remedy of filing a revision
before the Commissioner of Income Tax but
the High Court entertained the writ
petition. The Apex Court observed that
Hirday Narain could have moved the
Commissioner in revision because at the
date on which the petition was moved the
period prescribed by Section 33A of the Act
had not expired. Their Lordship further
held that the revision for an order
correcting the order of the Income-tax
Officer under Section 35 was not moved,
the High Court would not be justified in
dismissing the petition as not maintainable,
which was entertained and heard on merits.

32. In the case of Ashok Kumar
v. Managing Director, U.P. Leather
Development and Marketing Corporation,
1986 (16) LCD 6, relying upon the cases
Jai Kishan v. U.P. Cooperative Bank Ltd.,
1989 (2) UPLBEC 144 (DB) and Hirday
Narain v. I.T.O., Bareilly, AIR 1971 SC
33, the Division Bench of this Court
observed that if an order is void and the
petition does not involve controversial
question of facts, the Court may not refuse
to exercise its jurisdiction. The pendency of
the writ petition for several years in the
High Court was also taken to be a
justifiable ground for not relegating the
petitioners
to
get
their
grievances
redressed under the provisions of the
Industrial Disputes Act. Holding that in
such circumstances it will not in any
manner advance the cause of justice if after
the lapse of several years this Court is to
tell the workmen to go to the Labour Court
for seeking redressal of their grievances
more so in a case where there was no
controversy over the relevant facts.

33In the case Ashok Kumar v.
Managing
Director,
U.P.
Leather
Development and Marketing Corporation,
1986 (16) LCD 6, the High Court after
observing that the rule of exhaustion of
statutory remedy, before a writ will be
granted, is a rule of policy, convenience
and discretion rather than a rule of law
and it further observed that this is a matter
of discretion of the Court which is to be
exercised according tot he facts and
circumstances of each case.

34. In the case of Akhilesh
Kumar Saxena v. Director of Education
(Secondary) U.P., Lucknow, 1999 (17)
LCD 904, the Division Bench of this Court
5 All. Dr. Rajendra Kumar Srivastava Vs. State of U.P. & Ors.
1737
observed that where the Court has
entertained the petition staying operation
of the impugned order after exchange of
affidavits the Court should not have
disposed of the matter finally only by
dismissing the petition on the ground of
alternative remedy. In view of this, the
appeal was allowed setting aside the order
and directing that the writ petition be
disposed of finally after hearing on merits.

35. In the case of Sudhakar
Malviya v. Benaras Hindu University, 1997
(2) ESC 1213, it has been held that the High
Court was wrong in dismissing a writ petition
on the ground of availability of an alternative
remedy when the writ petition had been
entertained and had remained pending for 11
years. This was a case where statutory remedy
under Section 68 of the State Universities Act
was available to the petitioner but he has
directly approached the High Court under
Article 226 of the Constitution against the
impugned order and the High Court dismissed
the writ petition on the ground of availability
of alternative remedy under Section 68 of the
State Universities Act.

36. From the catena of decisions
of
the
Supreme
Court
following
propositions broadly flow:

(i) Statutory alternative remedy is
not an absolute bar for the High Court to
entertain a writ petition under Article 226
of the Constitution.

(ii) Refusal to entertain a writ
petition
on
existence
of
statutory
alternative remedy is a self imposed
restriction
for
which
following
considerations weigh, namely;

(a)
alternative
remedy
is
adequate, efficacious and speedy.

(iii) The High Court can try
issues of fact but may not entertain petition
where disputed question of facts have to be
determined and in such cases the petitioner
may
be
relegated
to
the
statutory
alternative forum.

(iv) If a writ petition has been
entertained despite there being a statutory
remedy, which may be adequate, and the
said petition has remained pending for
considerable period then there would be
little
justification
for
relegating
the
petitioner to the alternative remedy, unless
there are valid and cogent reasons for
doing so.

(v) Even if there exists an
adequate alternative, efficacious, speedy
remedy in the alternative forum, the High
Court may entertain the writ petition in the
following circumstances.

(a) for enforcement of any of the
fundamental rights,

(b) where there has been a
violation of principle of natural justice,

(c)
where
the
order
or
proceedings
are
wholly
without
jurisdiction, or

(d) the vires of the Act is
challenged.

Lastly, it depends upon the facts
and circumstances of each case as to
whether the discretion of entertaining the
writ petition in the teeth of the statutory
remedy has to be exercised or not."

13. Considering the rival contentions
with regard to dismissal of writ petitions on
ground of alternative remedy, it is seen in
the present case, the allegations are that the
entire proceedings against the petitioners
have been conducted in gross violations of
principles of natural justice, as hearing was
1738 INDIAN LAW REPORTS ALLAHABAD SERIES
afforded by one committee while the
decision was taken by the Executive
Council, this is contrary to all cannons of
the decision-making process. It has further
been contended that the petitioners have
been working pursuant to the selection by a
duly constituted selection committee for
last 6 to 7 years and termination of the
services, on the face of it, are illegal and
arbitrary and accordingly this Court is of
the considered view in light of said facts,
the bar of alternate remedy does not operate
against the petitioners and hence the
argument of the respondents in this regard
is accordingly rejected.

14. The other objection regarding the
petitioners having an alternative remedy
before the Visitor, is also bereft of merits in
as much as the proceedings which are being
assailed before this Court have already
been subjected to the scrutiny by the Vice
Chancellor at the behest of one Dr Abhay
Krishna. The Visitor by means of order
dated 11/03/2016 has already held that
the procedure adopted by the respondent
University and the constitution of the
selection committee resulting in the
appointment of the petitioners is valid.
The order of the visitor has been
challenged before this Court, and the writ
petition is pending consideration. Once
the order of the Visitor is already on
record, no useful purpose would be
served by relegating the petitioners
before the Visitor on the same issue. It is
also urged that the respondent University
is itself opposed the decision of the
Visitor,
which
itself
cannot
be
appreciated. In the present case no useful
purpose would be served by relegating
the petitioners to the remedy before the
Visitor. The objection raised by the
petitioners have force and the plea of
dismissal on ground of availability of
alternative remedy before Visitor is
accordingly rejected.

15. The 1st ground raised by the
petitioners assailing the proceedings initiated
against them culminating with the impugned
order of termination is with regard to the
procedure followed by the respondents in
conducting the enquiry. It is submitted that
the respondents have adopted the Uttar
Pradesh Government Servant (Discipline and
Appeal) Rules 1999 in its meeting dated
07/10/2021, where provision for termination
is provided. It is stated that once the Rules of
1999 have been adopted by the respondents,
it was bound to follow the said rules while it
adopted a procedure which is not prescribed
either in the Act of 2009, or any regulations
framed under it and therefore the entire
procedure followed by the respondents is
illegal and arbitrary and, hence, liable to be
set aside.

16. The respondents while defending
their actions submitted that the disciplinary
Rules of 1999 would be attracted only when
there are allegations of misconduct by the
employee, while in the present case the entire
selection was dehors the rules, as the
petitioners did not fulfil the minimum
prescribed educational qualifications and
hence their services were dispensed with and
their selection cancelled, and in any view of
the matter, the petitioners were afforded full
opportunity of hearing before cancelling their
selection and consequently supported the
enquiry proceedings as well as the order of
termination.

17. The provisions regarding power to
proceed against an employee of the
respondent University can be found in the
5 All. Dr. Rajendra Kumar Srivastava Vs. State of U.P. & Ors.
1739
statutes of 2009. Statute 9.04 provides that
a teacher at the University may be
dismissed or removed and his services
terminated on one or more of the following
grounds, which include wilful neglect of
duty, misconduct, breach of any of the
terms
of
the
contract
of
service,
incompetence or abolition of post. Further
statute 9.07 provides as under:-

"9.07.
No
order
dismissing,
removing or terminating the services of a
teacher of the University on any grounds
mentioned in clause (1) of statute 9.04
(except in case of a conviction for an
offence involving moral turpitude or of
abolition of post) shall be passed unless a
charge of been framed against the teacher
and communicated to him with the
statement of the grounds on which it is
proposed to take action and has been given
adequate opportunity:-

Of submitting a written statement
of his defence of being heard in person, if
he so chooses and of calling and examining
such witnesses in his defence as he may
wish provided that the executive Council or
an officer authorised by it to conduct the
enquiry, may for sufficient reason to be
recorded in writing refused to call any
witness

(2) the Executive Council may, at
any time ordinarily within 2 months from
the date of the enquiry officer report pass a
resolution dismissing or removing the
teacher
concerned
from
service
or
terminating the services mentioned in the
grounds of such dismissal, removal or
termination."

18. The Executive Council of the
University in its 35th meeting held on
07/10/2021 had resolved to adopt the Uttar
Pradesh Government Servant (Discipline
and
Appeal)
Rules,
1999
and
the
memorandum was issued on 25/10/2021
indicating the said rules having been
adopted for conduct of enquiry against the
officer and employees of the University.

19.
The
University
has
very
categorically stated that it had not followed
the Rules of 1999 only because there was
no misconduct and hence the said rules do
not apply to the present case. A perusal of
the Rules of 1999 indicates that according
to Rule 6 the appointing authority of a
Government servant may impose any of the
penalties specified in the said rules. Section
7 provides for a detailed procedure to be
followed for imposing major penalty.
Major penalties include withholding of
increment with little effect, reduction to a
low post or grade, removal from service,
dismissal from service as provided in Rule
3 while minor penalties include censure,
withholding of increment etc.

20.
In
order
to
appreciate
the
arguments raised by the respondents the
Rules of 1999 were not required to be
followed because there was no allegation of
misconduct, and secondly the selection of
the petitioners was set aside, for which
there is no provision in the Rules of 1999.

21. This Court after considering the
rival submissions is of the view that the
Rules of 1999 were applicable in the
present case and were required to be
followed by the respondents. A perusal of
the impugned order would clearly reveal
that
the
executive
committee
had
1740 INDIAN LAW REPORTS ALLAHABAD SERIES
recommended the termination of services
of
the
petitioners,
while
the
Vice
Chancellor while complying with the order
of the executive committee had set aside
the selection of the petitioners. We proceed
to decide the controversy in the present
case treating the impugned order to be an
order terminating the services of the
petitioners. The services of an employee
can be terminated only as a measure of
penalty as provided in the Rules of 1999, or
the statutes of the University. The common
ground in all the cases is that the petitioners
lacked the educational qualifications at the
time of the selection.

22.
This
allegation
is
directly
attributable to the petitioners, and such
conduct would be liable to be included in
the category of misconduct, which would
be the act of obtaining employment without
being duly qualified for the same. It is the
conduct of the petitioners in submitting
their educational qualifications, which
according to the respondents they did not
fulfil the criteria as laid down in the
advertisement or the guidelines published
by the University Grants Commission, for
which their services have been terminated.
On both these counts, this Court is of the
view that it was imperative that the
procedure established and accepted by the
respondents, which is the Rules of 1999
were to be followed, and in not doing so
the respondents have acted in the most
arbitrary and illegal manner, and the
impugned termination is not in accordance
with law.

23. In order to impose the punishment
of dismissal or removal, the Rules of 1999
will have to be followed. In order to impose
major
penalty
facts
constituting
the
misconduct on which it is proposed to take
action shall be reduced in the form of
definite
charge
contained
in
the
chargesheet, where the proposed evidence
and the name of witnesses are required be
mentioned. The employee is required to file
his response to the charges mentioned in
the chargesheet and in case he denies the
charges, the enquiry officer shall call the
witnesses to the proposed the charge sheet
to record oral evidence, and after recording
of evidence submit his enquiry report to the
disciplinary authority, who may either
accept the same, or differ with the report or
order re-enquiry as the case may be. In case
he does not order re-enquiry, he has to give
a show cause notice to the employee giving
him a copy of the enquiry report, and
finally conclude the proceedings either
exonerating the employee or awarding
punishment.

24. The aforesaid procedure is also
envisaged in Statute 9.07 of the respondent
University. In the present case no charge
sheet was given to the petitioner nor was
any oral evidence of the prosecution
recorded in presence of the petitioners and
they were not handed over the relevant
documents sought by them on the ground
of confidentiality and even the copies of the
enquiry report of the committees were
never given to the petitioners and only a
extract was given along with the show
cause notice and, therefore, the procedure
as provided in Statute 9.07 was not
followed, and consequently the entire
proceedings were held in violation of
statutes of the University as well as in
principle of natural justice.

25. To examine the validity of the
proceedings conducted by the respondent
5 All. Dr. Rajendra Kumar Srivastava Vs. State of U.P. & Ors.
1741
University culminating in the impugned
orders of cancellation of selection, it is
noticed that the 'authorities' of the
University have been prescribed under
Sections 8 and 13 of the Act of 2009. It is
laid down that the Executive Council shall
be the Chief Executive body of the
University. Section 16 lays the power and
functions
of
the
Executive
Council,
according to which it has power to appoint
Professor, Reader, Lecturer and other
members of the teaching staff as may be
necessary on recommendation of the
selection committee constituted by statutes
for the purpose. In exercise of powers
under Section 32 (1) of the Act of 2009, the
State Government on 08/07/2009 framed
Dr
Shakuntala
Mishra
rehabilitation
University (For differently abled) First
Statutes, 2009, (hereinafter referred to as
the Statutes) wherein in Statute 8.01
provides the qualification required for
appointment and career advancement of
teachers in the University other than the
faculty of special education which shall be
as per the qualifications prescribed by the
University Grants Commission. Further in
Statute 8.04, it has been provided that
notwithstanding anything contained in
Statutes 8.01, 8.02, 8.03 the Executive
Council may invite a person of high
academic
distinction
and
professional
attainments to accept the post of Professor
or Reader or any other academic post in the
University, as the case may be, on such
terms and conditions as it may deem fit.

26. Chapter IX of the Statues of the
University,
specifically
Statute
9.07
provides
that
no
order
dismissing,
removing or terminating the services of a
teacher of the University shall be passed
unless a charge has been framed against the
teacher and communicated to him the
statements of grounds, its proposed action
and has been given adequate opportunity.
In Statute 9.09, it has been provided that
executive Council shall constitute, for such
term as it thinks fit, a disciplinary
committee in the University which shall
consist of Vice Chancellor and other
persons nominated by it.

27. It seems that there were several
allegations against former Vice Chancellor,
against whom action was taken after
enquiry was instituted. The proceedings
against the former Vice Chancellor Dr
Nishith Rai were also looked into in
Special Leave Petition No.9830/2018 by
the Supreme Court, and vide order dated
06/04/2018 the University was given
liberty to proceed against him on all
matters except which were subject matter
of writ petition No. 7695 (SB) of 2016.

28. The Executive Council decided to
initiate an enquiry against the former Vice
Chancellor in its 35th meeting held on
07/10/2021 and constituted a committee
consisting of 2 retired High Court Judges.

29. In the present case, the entire
controversy has its roots in the resolution
passed by the General body of the
University on 25/01/2019. In the said
meeting the enquiry report submitted by
Justice (Retd.) Shailendra Saxena was
considered. The enquiry instituted against
the former Vice Chancellor Dr Nishith Rai
was
conducted
by
Justice
(Retd.)
Shailendra Saxena. In the said enquiry
report submitted to the General body of
university the allegations against the former
Vice Chancellor were proved. While
1742 INDIAN LAW REPORTS ALLAHABAD SERIES
accepting the said enquiry report, the
General body also resolved that action
would be taken with regard to all the
irregularities
including
technical,
administrative or financial committed by
the former Vice Chancellor after seeking
legal opinion.