# Dr. Vinay Kumar Pandey v. State of U.P. and others

- **Citation:** (2011) 1 ILRA 99
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-01-21
- **Case number:** Civil Misc. Writ Petition No. 24627 of 2009
- **Bench:** Sunil Ambwani, Mrs. Jayashree Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-vinay-kumar-pandey-v-state-of-u-p-and-others-41906
- **Pages:** 9

## Headnote

Constitution of India Art. 226 readwith
U.P. State Universities Act 1973-Section
68-In
alternation
Remedy-Petitioner
working
as
coordinator
of
B.Ed
Examination-
serious
allegation
of
corrupt
practices-pursuant
to
preliminary
enquiry
suspendedpetitioner
not
availed
alternative
statutory
remedy-Petition
not
maintainable.

Held: Para 17, 18 & 19

In each case the High Court has to
satisfy itself before entertaining the writ
petition, whether in a given case if any
alternative remedy exists, it is equally
efficient and adequate. The petitioner
must satisfy the Court that the case on
its fact falls within any of the exceptions
detailed as above to grant relief. In the
present case, we do not find that the
petitioner has been able to make out any
exception to circumvent the alternative
remedy, which is efficacious and speedy.

In the above circumstances, it cannot be
said that the order was not passed by
the competent authority, or that the
principle of natural justice were violated.
Further at this stage we are not satisfied
from
the
averments
and
material
produced on record that the order has
been passed in malafide exercise of
powers.

For the aforesaid reasons, we relegate
the petitioner to the statutory remedies
of
filing
representation
before
the
Chancellor under Section 68 of the U.P.
State Universities Act, 1973. If such a
representation is filed, the Chancellor
may consider the same on merits and
decide
the
representation
as
expeditiously as possible. We make it
clear that we have not examined the
merits of the charges. The discussion of
facts in the judgment is only to find out
whether
any
case
of
interference,
without exhausting alternative remedies
has been made out
Case law discussed:
(1985) 1 SCC 260; (2001) 10 SCC 491; (1979)
4 SCC 22; AIR 1965 SC 132; AIR 1955 SC 661;
AIR 1987 SC 2186; AIR 1970 SC 894; AIR
1969 SC 1320; AIR 2003 SC 3032.

## Text

1 All] Dr. Vinay Kumar Pandey V. State of U.P. and others
99

41. However, on the facts and in the
circumstances of the case, there will be no
order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.01.2011

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE MRS. JAYASHREE TIWARI, J.

Civil Misc. Writ Petition No. 24627 of 2009

Dr. Vinay Kumar Pandey
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Shailendra
Sri Seemant Singh

Counsel for the Respondents:
Sri Sunita Agarwal
Sri B.D. Mandhyan
Sri Satish Mandhyan
C.S.C.

Constitution of India Art. 226 readwith
U.P. State Universities Act 1973-Section
68-In
alternation
Remedy-Petitioner
working
as
coordinator
of
B.Ed
Examination-
serious
allegation
of
corrupt
practices-pursuant
to
preliminary
enquiry
suspendedpetitioner
not
availed
alternative
statutory
remedy-Petition
not
maintainable.

Held: Para 17, 18 & 19

In each case the High Court has to
satisfy itself before entertaining the writ
petition, whether in a given case if any
alternative remedy exists, it is equally
efficient and adequate. The petitioner
must satisfy the Court that the case on
its fact falls within any of the exceptions
detailed as above to grant relief. In the
present case, we do not find that the
petitioner has been able to make out any
exception to circumvent the alternative
remedy, which is efficacious and speedy.

In the above circumstances, it cannot be
said that the order was not passed by
the competent authority, or that the
principle of natural justice were violated.
Further at this stage we are not satisfied
from
the
averments
and
material
produced on record that the order has
been passed in malafide exercise of
powers.

For the aforesaid reasons, we relegate
the petitioner to the statutory remedies
of
filing
representation
before
the
Chancellor under Section 68 of the U.P.
State Universities Act, 1973. If such a
representation is filed, the Chancellor
may consider the same on merits and
decide
the
representation
as
expeditiously as possible. We make it
clear that we have not examined the
merits of the charges. The discussion of
facts in the judgment is only to find out
whether
any
case
of
interference,
without exhausting alternative remedies
has been made out
Case law discussed:
(1985) 1 SCC 260; (2001) 10 SCC 491; (1979)
4 SCC 22; AIR 1965 SC 132; AIR 1955 SC 661;
AIR 1987 SC 2186; AIR 1970 SC 894; AIR
1969 SC 1320; AIR 2003 SC 3032.

(Delivered by Hon'ble Sunil Ambwani, J.)

1. We have heard Shri Shailendra,
learned counsel for the petitioner. Learned
Standing Counsel appears for the State
respondents. Shri B.D. Mandhyan, Sr.
Advocate assisted by Shri Satish Mandhyan
appears for the University.

2. The petitioner is serving as
Professor in the Department of Commerce,
Deen
Dayal
Upadhyay,
Gorakhpur
University, Gorakhpur. He was appointed
as Coordinator of B.Ed. Examination by the
University for the period upto 17.5.2008.
100 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
By this writ petition he has prayed for
directions to set aside the exparte enquiry
report dated 12.12.2007 and suspension
order dated 26.4.2009. He has also prayed
for a writ of mandamus directing the
respondents to complete the enquiry under
Section 8 (1) of the U.P. State Universities
Act, 1973, and to proceed for enquiry under
Section 8 (4) only, if anything is found
against him. He has also made prayer to
direct the respondents to verify whether any
complaint in the form of affidavit exists and
whether any prima facie case exists with
regard
to
irregularities
in
B.Ed.
examination.

3. The writ petition was filed on 8th
May, 2009. The matter was heard and was
directed to be put up for further arguments
on 30.6.2009 and was adjourned on
3.7.2009. In the meantime, the Executive
Council by its recommendations dated
28.6.2009 communicated to the petitioner
by order dated 30.6.2009, decided to
dismiss the petitioner from service. The
Vice Chancellor by his order dated
30.6.2009 has dismissed the petitioner from
service.

4. The petitioner filed an amendment
application on 8.7.2009 challenging the
order of the Executive Council dismissing
him from service and the order of the Vice
Chancellor
of
the
University.
The
amendment application was allowed on
8.10.2009.

5. Shri B.D. Mandhyan has raised
objections to the amendment application on
various grounds, including the alternative
remedy available to the petitioner against
the order of the Vice Chancellor dismissing
the petitioner from service, by making a
representation to the Chancellor under
Section 68 of the U.P. State Universities
Act, 1973.

6. Shri Shailendra, learned counsel for
the petitioner submits that the impugned
order was passed, when the petitioner was
working on the post of Professor in the
Department of Commerce. He had initially
challenged the disciplinary proceedings
initiated against him on an exparte fact
finding enquiry and on which he was
suspended on 26.4.2009. A first information
report was lodged against him on 24.5.2009
and charge sheet was filed on 22.4.2009 by
relying upon same preliminary enquiry
report. After exchange of affidavits in the
writ petition challenging the suspension
order, the Court had fixed 30.6.2009 for
further hearing. Shri Shailendra submits that
taking advantage of the vacations of the
Court the Acting Vice Chancellor (the
Commissioner of the Division) completed
all the proceedings within three or four
days, as claimed. The disciplinary enquiry
proceeded exparte on 26.6.2009, and on
which an exparte report dated 27.6.2009
was submitted. The meeting of the
Executive Council was convened on
28.6.2009 in which six new members
inducted on 27.6.2009, participated. The
agenda of the meeting was not circulated
and on the same day on 28.6.2009 the
Executive Council considered the report of
the Disciplinary Committee, to remove the
petitioner, and passed a resolution to
dismiss the petitioner. The Vice Chancellor
passed the order of dismissal on the third
day on 30.6.2009.

7. The petitioner was the Coordinator
of B.Ed. Examination. A complaint was
made by one Shri Durga Prasad, the ExPresident, Bahujan Samaj Party, Gorakhpur
in respect of large scale irregularities of the
conduct of the B.Ed. Examination in the
1 All] Dr. Vinay Kumar Pandey V. State of U.P. and others
101
affiliated colleges. The petitioner had
worked as Coordinator, a post on which he
was appointed, on temporary arrangement
upto 17.5.2008. It was alleged in the
complaint addressed to the Chief Minister
that in respect of admissions of B.Ed.
course of the years 2005-06 and 2006-07
the High Court has given an eye opening
judgment. The Examination Controller had
got all the answer books of the B.Ed.
Examination of the colleges running selffinance course, from only two examiners
and in which they had taken Rs.25-30 lacs
for giving good marks to the students. 81%
students passed in First Class, whereas the
students of self-finance courses are not as
meritorious,
as
the
students
of
the
University and aided colleges, admitted on
merit. The then Vice Chancellor and the
Examination Controller earned crores of
rupees in the examinations in which the
University has given overdraft of Rs.6
crores. In the scrutiny of marks the
Examination
Controller,
with
the
Coordinator in the year 2005-06 increased
the marks of 1500 students and at some
place 6 marks given to the students, were
made 66. The students were required to
shelve out Rs.10,000/- each for increase of
marks and in this manner they earned lacs
of rupees. They had, thereafter, got the
answer books burnt, whereas the answer
books with increased marks in scrutiny are
preserved for atleast two years. In the year
2006-07 the racket reached to its zenith in
which the number of marks of 4000
students were increased by accepting
money.

8. The examinations were subjected to
judicial scrutiny of the Court. In Writ
Petition No.14587 of 2007, Pradeep Kumar
Tripathi Vs. State of U.P. & Ors., Hon'ble
Mr. Justice Arun Tandon by his judgment
dated 23.5.2007 passed a detailed order as
follows:-

"The facts of the present case depicts
that a mockery has been made of the
statutory provisions applicable by the Vice
Chancellor, Controller of the Examinations
as well as by the institutions while granting
admissions to the students much in excess of
the permissible intake permitted under the
order of recognition issued by the National
Council
for
Teacher
Education
in
accordance with the provisions of the
National Council for Teacher Education
Act, 1993 as well as in the appearance in
the University examinations and qua
declaration of their results.

From Annexure-2 of the affidavit filed
by the Vice Chancellor of the University it is
admitted that six degree colleges affiliated
to the said University, which had the
recognition for an intake of 100 students
only from National Council for Teacher
Education, had granted admissions to the
students in the B. Ed. Course much in
excess of the permitted intake. The
document records that Vidyarthi Degree
College, Kushinagar has admitted 159
students,
Veer
Bahadur
Singh
Mahavidyalaya, Gorakhpur has admitted
149 students, Prabha Devi Mahavidyalaya,
Sant Kabirnagar has admitted 217 students,
Chaudhary Mahavir Prasad Memorial
Mahavidyalaya,
Siddharthnagar
has
admitted
277
students,
Kisan
Mahavidyalaya, Kushinagar has admitted
107 students and Sant Andrews College,
Gorakhpur has admitted 146 students
(while stand of the college is that it has
admitted 126 students).

Various interim orders have been
obtained from this Court where under the
students admitted in the course were
102 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
permitted to appear in the examinations to
be conducted by the Gorakhpur University
on writ petition filed by the management of
the institutions.

It is admitted to the counsel for the
University that out of number of students,
who had appeared as regular students in
the B. Ed. Course from the aforesaid
colleges, result of 100 students each have
been declared in respect of Vidyarthi
Degree College, Veer Bahadur Singh
Mahavidyalaya, Gorakhpur and Kisan
Mahavidyalaya,
Kushinagar,
while
in
respect of Prabha Devi Degree College
result of 144 students has been declared.
While in respect of Sant Andews College,
Gorakhpur it has been stated that result of
126 students has been declared. Qua
Chaudhary Mahavir Prasad Memorial
Degree College it is stated that result of 102
students have been declared (100 regular
and 2 Ex-students).

There is also a dispute with regard to
number of candidates whose result have
been declared in respect of Veer Bahadur
Singh Purvanchal University, Jaunpur
which according to the counsel for the
petitioner is 101 in place of 100 as stated by
the Vice Chancellor.

Following
issues
arise
for
consideration before this Court.

(a) Whether any college having been
permitted an intake of 100 students by
National Council for Teacher Education
can admit students beyond the intake
permitted.

(b) Whether the University in the facts
of the case had colluded with the
institutions in violating the law with
impunitive by creating a situation where
under the institutions have admitted the
students much in excess of their sanctioned
strength.

(c) Whether the University is legally
competent to hold examinations of students
admitted in various institutions in excess of
the sanctioned strength.

d) How the students admitted in excess
of the sanctioned strength are to be
compensated for the fraud which has been
played by the University and the colleges.

(e) What action is required to be taken
by the State Authorities against the officers
of the University as well against the
management of the institutions, who have
created such a mistake.

So far as the first issue is concerned,
the National Council for Teacher Education
Act, 1993 has been framed for regulating
and monitoring the teachers education
through out the country. It is an Act of
Parliament. The Hon'ble Supreme Court of
India in the case of State of Maharashtra
vs. Sant Dhyaneshwar Shikshan Shstra
Mahvidyalaya; reported in JT 2006 (4) S.C.
201 has clarified that the law of the
Parliament is all persuasive and any State
Act contrary will have to give way to the
said Act of Parliament.

It is not in dispute that the National
Council for Teacher Education not only
grants recognition to the institutions, it also
lays down the maximum number of intake of
students to which a particular institution is
entitled.

It is not in dispute that under the letters
of recognition granted by the National
Council for Teacher Education in favour of
these institutions it is specifically mentioned
1 All] Dr. Vinay Kumar Pandey V. State of U.P. and others
103
that an intake of 100 students would be
permissible. It is on this letter of recognition
that the University, which is the examining
body, has to grant affiliation to the degree
colleges within its jurisdiction. Reference
Section 14 read with Section 15 of the
National Council for Teacher Education
Act, 1993.

From
the
aforesaid
statutory
provisions only one logical consequence
follows i. e. no excess student beyond the
permitted intake can be admitted by any
college recognized by the National Council
for Teacher Education. Admission beyond
the permitted intake would be void and such
students cannot appear in the University
examinations nor their results can be
declared.

It is, therefore, held that in no case the
colleges could have admitted students in
excess of the permitted intake of 100 and
therefore the college as well as the
University, which has permitted such excess
intake, are equally to be blamed.

So far as the students, who have been
admitted in excess of the strength permitted
by the National Council for Teacher
Education are concerned, they have no
legal authority to appear in any University
examinations in respect of the said course.
Their
admissions
are
void
abinitio,
inasmuch as the institutions do not have the
permission to admit any student beyond the
permitted intake of 100. The Hon'ble
Supreme Court in the case of C.B.S.E. and
another vs. P. Sunil Kumar & Others etc.,
reported in AIR 1998 SC 2235 and in the
case of Minor Sunil Oraon Tr. Guardian
& Ors. vs. C.B.S.E. & Others, reported in
JT 2006 (10) SC 375 has clarified that any
sympathy shown to such students, admitted
illegally, would be totally misplaced as
would result in adversely affecting the
entire academic of the University as well as
the rules laid down for regulating the same.

In these circumstances this Court can
have no sympathy with the students, who
have been illegally admitted in excess of the
sanctioned strength of 100.

This Court holds that such students,
who have appeared in the University
examination beyond the sanctioned strength
of 100, are not entitled to any relief under
Article 226 of the Constitution of India nor
their result in respect of the said
examination are required to be declared.

This Court may further record that the
declaration of the result by the University of
students in excess of the permitted intake
qua
Sant
Andrews
Degree
College,
Chaudhary Mahavir Prasad Memorial
Degree College and Prabha Devi Degree
College and any other institution would
also be a nullity and the University shall
take all appropriate action to cancel the
result of the students so declared passed,
after affording opportunity of hearing to
them, preferably within four weeks from
today.

The last two issues, which remain for
consideration, are as to how students, who
have been so arbitrarily admitted by the
institutions in collusion with the University
should be compensated for the loss of their
academic session and as to what action
should betaken against the University as
well as management in respect of the fraud
which they had played with the career of the
students while directing admission beyond
the permitted intake and while holding
examination of such students.
104 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

In the opinion of the Court so far as
these students are concerned, it would be
fair to direct that the institutions shall
refund the total fee realized from the
students so admitted beyond the sanctioned
strength along with interest at the rate of
10% per annum from the date the fee was
realized till the date of actual payment.
Such refund of the fee must be made within
one month from today to the students
concerned through bank draft drawn from a
nationalized bank.

Over and above the same students
shall also be entitled for a some of Rs.
25,000/- (Twenty Five Thousand) each for
the loss of one academic year because of
such illegal act of the college as well as
University. 50% of this amount shall be
paid by the University and the other 50% by
the college concerned from their own
sources within one month through Account
Payee Cheque drawn in favour of the
students concerned.

So far as the management of the
institution and the officers of the University
including the Vice Chancellor, the Registrar
as well as controller of Examination are
concerned, let records of the writ petition
along with the order passed to day be
placed
before
the
Secretary,
Higher
Education U.P., Lucknow. The Secretary
shall conduct a detail enquiry into the entire
episode. The Secretary will ensure that all
disciplinary action necessary in the facts of
the case is taken and if there are other facts,
which may result in criminal liability,
suitable action in that regard may also be
initiated in that regard. The Secretary shall
recommend appropriate action against all
found
responsible
to
the
authority
concerned, competent to take the action."

9. The special appeal No.530 of 2007
against the order was disposed of on
4.12.2010. The Division Bench did not
interfere with the judgment and only gave
directions to hear and decide the matter
expeditiously. In pursuance to the order of
learned Single Judge dated 23.5.2007 the
University had to pay Rs.47 lacs as
compensation to the students. The bank
drafts were deposited by the University.

10. The Executive Council by its
resolution dated 17.5.2008 constituted
disciplinary committee of Mr. Justice
Giridhar Malviya; Mr. Justice A.L.B.
Srivastava and the Acting Vice Chancellor.
A High Power Committee was also
constituted with five members to fix the
criminal liability. It is alleged that the
petitioner requested to the Registrar to
provide documents on the basis of which
the enquiries were initiated. His requests did
not result into giving him the documents on
the basis of which first information report
was lodged against the petitioner, Professor
Ajay Kumar Srivastava, the Examination
Controller as well as Shri Satrughan Singh,
the Asstt. Registrar. A charge sheet was
filed on 22.4.2009. A Writ Petition
No.46007 of 2008 was disposed of with the
directions that the departmental enquiry be
proceeded in accordance with law before
passing any order contrary to the interest of
the petitioner. The Executive Council by its
decision dated 26.4.2009 suspended the
petitioner. The suspension order was
challenged in this writ petition.

11. The disciplinary committee was
reconstituted by the Acting Vice Chancellor
as its Chairman with Shri Vikas Verma,
IAS, and Hon'ble Mr. Justicke K.D. Sahi
(retired) as its members. It is alleged that the
petitioner was neither given the documents
nor permission to inspect them. He was not
1 All] Dr. Vinay Kumar Pandey V. State of U.P. and others
105
allowed to cross-examine all the witnesses.
He
could
cross-examine
only
three
witnesses. This writ petition against the
suspension order was fixed for hearing on
30.6.2009, and in the meantime the
disciplinary committee submitted report on
27.6.2009 on which the resolution was
passed by the Executive Council on
28.6.2009 accepting the exparte report and
the petitioner was dismissed by the order of
the Vice Chancellor dated 30.6.2009.

12. Shri Shailendra submits that the
entire enquiry was held in contravention to
the Rules for holding departmental enquiry.
He has alleged malafides against the acting
Vice Chancellor and has raised number of
grounds including the violation of principal
of natural justice.

13. Shri B.D. Mandhyan, Sr.
Advocate on the other hand submits that
large scale fraud was detected by the Court
in which University deposited Rs.47 lacs as
compensation
to
the
students.
The
Examination Controller was given the
charge to conduct examinations. A large
number of students (81%) were given First
Class marks for which money was taken for
awarding higher marks in scrutiny and the
copies were destroyed. The petitioner was
not cooperating in the enquiry. He submits
that the petitioner was suspended and
enquiry was held. The petitioner had
participated in the enquiry. He filed reply to
the charge sheet, and cross-examined three
witnesses. His defence was considered in
the enquiry by the disciplinary committee
including a retired judge of this Court. The
Executive Council considering the gravity
of the matter decided to dismiss the
petitioner. The Vice Chancellor has passed
a detailed reasoned order. The petitioner,
therefore, should avail the remedy of
approaching the Chancellor under Section
68 of the U.P. State Universities Act, 1973
before availing the extraordinary remedies
of writ jurisdiction.

14. In the present case the admitted
facts are that large scale irregularities were
detected by the Court in which admissions
beyond permissible strength were made and
that a large number of students were given
first class marks purportedly to secure
employment on the basis of quality point
marks in B.Ed. Examination. The answer
books were subjected to scrutiny, in which
the marks were further enhanced. The
answer books were quickly destroyed.
Prima facie we find that the University
proceeded cautiously in first making
preliminary enquiry on the complaint and
thereafter in constituting a High Level
Committee. The Disciplinary Committee
including an IAS Officer and retired Judge
of this Court gave opportunity to the
petitioner to defend himself. He gave reply
to the charges and cross-examined some of
the witnesses. The enquiry report was
submitted and considered by the Executive
Committee. The petitioner was dismissed
from service on the recommendations of the
Executive Council, by the Vice Chancellor.

15. Article 226 is not intended, as it
was held in Assistant Collector of Central
Excise vs. Dunlop India Limited (1985) 1
SCC
260
to
circumvent
statutory
procedures. Where statutory remedies are
available or statutory tribunals have been set
up, the High Court does not entertain a writ
petition. It was held that there are wellknown exceptions to entertain petitions
under Article 226 of Constitution of India
directly without exhausting alternative
remedies, namely where the very vires of
the statute is in question; or where private or
public wrongs are so inextricably mixed up
and the prevention of public injuries and the
106 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
violation of public justice require with
recourse may be had to Article 226.
(Modern Industry vs. State of UP (2001)
10 SCC 491) or where the alternative
remedy is not effective or adequate.

16. The Courts in India have also
developed a principle that an alternative
remedy is not an absolute bar to the relief
under
Article
226.
There
may
be
circumstances such as the authority, passing
the orders sought to be quashed, had no
powers and that the orders are wholly
without jurisdiction and where there has
been gross violation of principle of natural
justice in making an order which affects the
civil rights of the parties. The other wellknown exceptions are where alternative
remedy is too dilatory or difficult for quick
relief. (Assistant Collector of Central
Excise vs. Johnson Hosiery Industry
(1979) 4 SCC 22; where any mandatory
provision of Constitution has been violated
such as Article 265 (Municipal Council vs.
Kamal Kumar, AIR 1965 SC 132); where
the Act which provides alternative remedy
is itself unconstitutional or ultra vires for
want of legislative competence (Bengal
Immunity Company Ltd. vs. State of
Bihar AIR 1955 SC 661); where the order
is nullity for some defect going to the root
of the jurisdiction of the authority (Kuntesh
Gupta vs. Management of Hindu Kanya
Mahavidyalaya AIR 1987 SC 2186;
where the authority imposing an ultire vire
condition (Tilok Moti Chand vs. H.B.
Munshi AIR 1970 SC 894 or where the
alternative forum is not competent to grant
the
relief
(
Deccan
Merchants
Cooperative Bank vs. Duli Chand Jugiraj
Jain AIR 1969 SC 1320) or even in a case
where it is likely that the alternative forum
would not be in a position to render justice
to the cause (D.K. Rangarajan vs.
Government of Tamilnadu AIR 2003 SC
3032).

17. In each case the High Court has to
satisfy itself before entertaining the writ
petition, whether in a given case if any
alternative remedy exists, it is equally
efficient and adequate. The petitioner must
satisfy the Court that the case on its fact
falls within any of the exceptions detailed as
above to grant relief. In the present case, we
do not find that the petitioner has been able
to make out any exception to circumvent the
alternative remedy, which is efficacious and
speedy.

18. In the above circumstances, it
cannot be said that the order was not passed
by the competent authority, or that the
principle of natural justice were violated.
Further at this stage we are not satisfied
from the averments and material produced
on record that the order has been passed in
malafide exercise of powers.

19. For the aforesaid reasons, we
relegate the petitioner to the statutory
remedies of filing representation before the
Chancellor under Section 68 of the U.P.
State Universities Act, 1973. If such a
representation is filed, the Chancellor may
consider the same on merits and decide the
representation as expeditiously as possible.
We make it clear that we have not examined
the merits of the charges. The discussion of
facts in the judgment is only to find out
whether any case of interference, without
exhausting alternative remedies has been
made out.

20. The writ petition is disposed of
accordingly.
---------
1 All] Smt. Rajeshwari Devi V. State of U.P. and others
107
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.01.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 28935 of 2007

Smt. Rajeshwari Devi

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

Counsel for the Petitioner:
Sri Anwar Mehndi Zaidi,
Sri A.C. Pandey

Counsel for the Respondent:
Sri Anil Tiwari,
C.S.C.

U.P. Nagar Mahapalika Sewa Niymawali
1962-Rule-27-Dismissal-whether can be
passed against dead employee-held-'No'
disciplinary authority including enquiry
officer-shows height ignorance of the
Principle of Service Law-word used in
Section is employee and not the family
members-forfeiture of Gratuity pension
etc. beyond jurisdiction-court expressed
great displeasure-exemplary cost of Rs.
10,000/- imposed-with direction to pay
all amount within specified period, with
10% interest thereon.

Held: Para 7

The punishment provided in Rule 27,
therefore, can be imposed upon the
"servant" of Mahapalika and not on the
family members of the "servants" of
Mahapalika. As soon as an incumbent
who
was
an
employee
of
Nagar
Mahapalika dies, for the purpose Rule 27
of 1962 Rules, he ceases to be a "servant
of
Nagar
Mahapalika"
as
a
result
whereof no penalty under Rule 27 could
be imposed upon him. That being so, the
question of passing an order, which may
have the effect of punishing legal heirs
of the deceased employee would not
arise. No such power has been conferred
upon any authority of Nagar Nigam,
Bareilly or else to pass any such order.
Moreover, punishments which have been
imposed, i.e. withholding of all retiral
benefits including provided fund and non
consideration
of
legal
heir
for
compassionate appointment are also not
provided as a punishment under Rule 27.
It is well settled that a punishment not
prescribed under the rules, as a result of
disciplinary
proceedings,
cannot
be
awarded even to the employee what to
say of others. The Court feel pity on the
officers of Nagar Nigam, Bareilly in
continuing
with
the
departmental
enquiry against a person who was
already died and this information of
death was well communicated to the
enquiry officer as well as disciplinary
authority. They proceeded with enquiry
and passed impugned orders against a
dead person. This is really height of
ignorance of principles of service laws
and shows total ignorance on the part of
the officers of Nagar Nigam in respect to
the disciplinary matters. This Court
expresses its displeasure with such state
of
affairs
and
such
a
level
of
unawareness
on
the
part
of
the
respondents who are responsible in
establishment matters. They have to be
condemned in strong words for their
total
lack
of
knowledge
of
such
administrative
matters
on
account
whereof legal heirs of poor deceased
employee have suffered.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. This is really a strange kind of case.
One Sri Ghasi Ram working as Mali in
Nagar Nigam Bareilly, was placed under
suspension on 21.7.2005 and a charge sheet
was issued to him from the office of Nagar
Nigam on 26.7.2005. The delinquent
employee
Ghasi
Ram
died
on
31.7.2005/1.8.2005 and this information
was received in the office of Nagar Nigam
on 2.8.2005. Despite, the enquiry officer