# Iliyas Ali v. State of U.P. Thorugh The Principal Secy. Secondary Dept.Lko

- **Citation:** (2012) 2 ILRA 724
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-28
- **Bench:** Anil Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/iliyas-ali-v-state-of-u-p-thorugh-the-principal-secy-secondary-dept-lko-42258
- **Pages:** 6

## Headnote

Dr.L.P.Misra
Sri Abhishek Misra

Counsel for t he Respondents:
C.S.C.
Sri D.P.Singh

Constitution
of
India,
Article
226Disciplinary
Proceeding-continuationagainst Principal of Inter College-after
retirement withholding gratuity pension
consequent thereof-held-in absence of
specific
provision
in
Intermediate
Education
Act-continuation
of
disciplinary proceeding and withholding
retirement benefits-arbitrary in view of
Rajesh Kumar Saxena case.

Held: Para 21

For the foregoing reasons, once there is
no specific provisions in the in the U.P.
Intermediate Education Act, 1921 or
Regulation
framed
thereunder
for
initiation of a disciplinary proceeding or
continuing the disciplinary proceeding
against petitioner who placed under
suspension after his retirement then the
action on the part of official respondents
to withhold his post retiral dues is an
action which is arbitrary in nature, thus,
violative of Article 14 of the Constitution
of India as well as principles of natural
justice (See. Rajesh Kumar Saxena Vs.
Bharat Sanchar Nigam Ltd. and others,
[2007 1 ESC 648 (All) (DB)].
Case law discussed:
(1999) 3 SCC 666; [2007 1 ESC 648 (All)
(DB)]; (1999) 4 SCC 759

## Text

724 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
not suffer during the present era of
competition.

110. In the result, I do not find any
infirmity or illegality in the action on the part
of the State authorities/District Inspector of
Schools either not to pay the salary or to stop
the payment of salary to the Assistant
Teachers/Lecturers
who
are
appointed
against substantive vacancy or short term
vacancy which subsequently converted into
substantive vacancy on ad hoc basis by the
Committee of Management as the said
authority has got no power under law to
appoint them, accordingly, all the writ
petitions lack merit and are dismissed.

111. The interim orders granted in
favour of petitioners in some of the writ
petitions are vacated.

112. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.05.2012

BEFORE
THE HON'BLE ANIL KUMAR, J.

Service Single No. - 4076 of 2011

Iliyas Ali

 ...Petitioner
Versus
State of U.P. Thorugh The Principal Secy.
Secondary Dept.Lko
 ...Respondents

Counsel for the Petitioner:
Dr.L.P.Misra
Sri Abhishek Misra

Counsel for t he Respondents:
C.S.C.
Sri D.P.Singh

Constitution
of
India,
Article
226Disciplinary
Proceeding-continuationagainst Principal of Inter College-after
retirement withholding gratuity pension
consequent thereof-held-in absence of
specific
provision
in
Intermediate
Education
Act-continuation
of
disciplinary proceeding and withholding
retirement benefits-arbitrary in view of
Rajesh Kumar Saxena case.

Held: Para 21

For the foregoing reasons, once there is
no specific provisions in the in the U.P.
Intermediate Education Act, 1921 or
Regulation
framed
thereunder
for
initiation of a disciplinary proceeding or
continuing the disciplinary proceeding
against petitioner who placed under
suspension after his retirement then the
action on the part of official respondents
to withhold his post retiral dues is an
action which is arbitrary in nature, thus,
violative of Article 14 of the Constitution
of India as well as principles of natural
justice (See. Rajesh Kumar Saxena Vs.
Bharat Sanchar Nigam Ltd. and others,
[2007 1 ESC 648 (All) (DB)].
Case law discussed:
(1999) 3 SCC 666; [2007 1 ESC 648 (All)
(DB)]; (1999) 4 SCC 759

(Delivered by Hon'ble Anil Kumar, J.)

1. Matter is taken in the revised cause
list.

2. None present on behalf of O.P. No.
5.

3. Heard Dr. L.P. Mishra, learned
counsel for petitioner, learned State counsel
for official respondents and perused the
record.

4. In the City of Unnao, there is an
institution known as Jawahar Lal Nehru
Inter College, Fatehpur Chaurasi, Unnao
(hereinafter referred to as the institution)
recognized by U.P. Secondary Education
Board, Allahabad as provisions provided
2 All] Iliyas Ali V. State of U.P. Thorugh The Principal Secy. Secondary Dept.Lko
725
under U.P. Intermediate Education Act,
1921
and
the
Regulations
framed
thereunder as well as U.P. High Schools
and Intermediate Colleges (Payment of
Salaries to the Teachers and Other
Employees) Act, 1971.

5. On 27.07.1974, the petitioner was
appointed on the post of Lecturer in
Geography in the institution. In July, 2010
as he was the senior-most Lecturer in the
institution, so appointed as Principal in July,
2010. While working an discharging the
duties on the said post, by an order dated
10.06.2011
placed
under
suspension
thereafter retired on 30.06.2011 after
attaining the age of superannuation during
suspension period.

6. In view of the abovesaid factual
background, the present writ petition has
been filed by the petitioner with the
following main prayer:-

"(a) To issue a writ, order or direction
in the nature of Mandamus commanding the
Opp. parties 1 to 4 pay to the petitioner his
post-retirement
benefits
including
the
monthly pension by treating the petitioner
having retired from the post of Principal of
Jawahar Lal Nehru Inter College, Fatehpur
Chaurasi, Unnao, the suspension order date
10.05.2011 notwithstanding."

7. Dr. L.P. Mishra, learned counsel for
petitioner while pressing the relief as
claimed by petitioner submits that he was
appointed on the post of Principal in the
institution being the senior most Lecturer is
to retire on after attaining the age of
superannuation i.e. 62 years as his date of
birth
recorded
in
High
School
Certificate/Service Book as 14.03.1949.
Hoever, he was allowed to continue till 30th
June, 2011 under the provisions that the age
of superannuation of a teacher including the
Principal of an Intermediate College is 62
years but in the event of date of birth being
Second July, or onwards, the person shall
continue till the end of Academic Session,
i.e. June, 30 of the said year. But 20 days
prior to his retirement placed under
suspension by order dated 10.06.2011 by
leveling false and frivolous allegation.

8. He further submits that after
retirement from services there is no
provisions,
provided
under
U.P.
Intermediate Education Act, 1921 and the
Regulations
framed
thereunder
for
conducting disciplinary proceedings or the
continuance of any disciplinary proceedings
against a Teacher or a Principal of an
Intermediate College. Hence, in the present
case after retirement on 30.06.2011 neither
the
suspension
nor
any
disciplinary
proceeding can either be initiated or
conducted
against
the
petitioner,
so
withholding of the post retiral dues of the
petitioner by the respondents is not
permissible under law and they shall be
directed to pay the same to him.

9. In support of his argument, he
placed reliance on the judgment given by
Apex Court in the case of Bhagirathi Jena
Vs. Board of Directors, O.S.F.C. And
Others (1999) 3 SCC 666 and in the case
of Rajesh Kumar Saxena Vs. Bharat
Sanchar Nigam Ltd. and others, [2007 1
ESC 648 (All) (DB)].

10. Further, in the instant matter, on
behalf of the opposite party Nos. 1 to 4 i.e.
State authorities, no counter affidavit has
been filed in spite of time granted to them.
However, learned State Counsel on the
basis of the document on record, a letter
dated 13.10.2011 written by District
Inspector of Schools to Manager of the
726 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
institution submits that as the suspension
order dated 10.06.2011 by which the
petitioner has been placed under suspension
by the Committee of Management has not
been approved by the said authority, so the
same has automatically ineffective after his
retirement. In this regard, he placed reliance
on the following averments made in the
letter
dated
13.10.2011,
the
District
Inspector of Schools, relevant portion
quoted below:-

"ूबंध
सिमित
के ू
ःताव
दनांक
10.06.2011 के 'ारा ौी इिलयास अली
काय,वाहक ू
धानाचाय, का ू
बंध सिमित 'ारा
कये गए िनलंबन का ःनुमोदन न होने के
कारण ौी इिलयास अली के स/बध म0 ूबंध
सिमित 'ारा क गे काय,वाह ःवतः िनंू
भावी
सो गयी है | ौी इिलयास अली सेवािनवृत
काय,वाहक ू
धानाचाय, के 'ारा मा० यायलय
म0 7रट यािचका नोटस सं9या -- 4813/2011
योजत क गयी है | उ; आदेश मा० यायलय
'ारा पा7रत होने वाले आदेश से ूितबंिधत होगा
/

अतः
ौी
इिलयास
अली
त=कालीन
काय,वाहक ूधानाचाय, का दनांक 10.06.2011से
30.06.2011तक का वेतन एवं प0शन ू
करण
तीन दन के अदर इस काया,लय को उपल>ध
डरना सुिन@त कर0, ताक ूकरण पर अमेतर
काय,वाह क जा सके /"

11. As stated above, none has
appeared on behalf of O.P. Nos. 5 and 6 i.e.
Committee of management and the Manger
of the institution, however, on the basis of
the counter affidavit filed on their behalf,
the stand taken by the said authorities is that
the petitioner has has placed under
suspension on 10.06.2011.

12. However, in respect to the
pleading as raised by the petitioner in para
Nos. 18 and 19 of the writ petition that after
his retirement no disciplinary proceedings
can either be initiated or conducted, the
reply as given in para No. 18 of the counter
affidavit by the said opposite parties are to
the effect that "the contents of paras 18 and
19 of the writ petition are not correct."

13. In view of the abovesaid facts,
after hearing learned counsel for parties
who are present today and going through
the material on record, sole question to be
decided in the present case is whether after
the retirement of the petitioner disciplinary
proceeding can continue against him when
there is no specific provision for initiation
and continuation of any disciplinary
proceeding after retirement of a teacher or
Principal of Intermediate College in the
U.P. Intermediate Education Act, 1921 and
the Regulation framed thereunder.

14. In order to decide the same it is
relevant to go through the provisions
provided in the Intermediate Education Act,
1921
for
conducting
disciplinary
proceeding.

15. Regulation 31 to 45 under Chapter
III framed in U.P. Intermediate Education
Act, 1921 provide condition of service of
teachers and employees of the institution
upto Intermediate classes.

"Regulation 35 of Chapter III of the
Act provides that if a complaint or an
adverse report is received by the Committee
of Management of the institution, against a
teacher or a principal of the institution, the
Manager, in the case of a teacher and in the
case of the principal of the institution, a
sub-committee will be constituted to enquire
into the charges and submit the report.
2 All] Iliyas Ali V. State of U.P. Thorugh The Principal Secy. Secondary Dept.Lko
727

Regulation 36 of the Regulations
provides:- that the grounds which it is
proposed to take action shall be reduced int
eh form of a definite charge or charges
which shall be communicated to the
employee charged and which shall be so
clear and precise as to give sufficient
indication to the charged employee of the
facts and circumstances against him.

.........................The Inquiring authority
conducting the enquiry may also, separately
from these proceedings, make his own
recommendation regarding the punishment
to be imposed on the employee."

The language of Regulation 35 read
with Regulation 36 makes it clear that it is
obligatory in the case of the allegations
against a principal, that a Sub-Committee
should be constituted to enquire into the
charge. The said Sub-Committee is required
to reduce in the form of a definite charge or
charges the grounds on which it proposes to
hold enquiry."

16. Further, Regulation 39 Chapter-III
of the U.P. Intermediate Act, 1921 provides
the formalities are to be done by the
Committee of Management after submitting
of the inquiry report by the Inquiry Officer
the said Regulation is quoted as under:-

" Regulation 39 Chapter-III framed
under U.P. Intermediate Act, 1921 reads as
under:-

"39(1). The report regarding the
suspension of the head of institution or of
the teacher to be submitted to the Inspector
under sub-section 16-G shall contain the
following particulars and be accompanied
by the following document-

(a) the name of the persons suspended
along with, particular of the (posts
inculding grades) held by him since the date
of his original appointment till the time of
suspension including particulars as to the
nature of tenure held at the time of
suspension, e.g., temporary permanent or
officiating;

(b) a certified copy of the report on the
basis of which such person was last
confirmed or allowed to cross efficiency
barf, whichever later;

(c) details of all the charges on the
basis of which such person was suspended;

(d) certifed copies of the complaints,
reports and enquiry report, if any, of the
enquiry officer on the basis of which such
person was suspended;

(e) certified copy of the resolution of
the Committee of Management suspending
such person;

(f) certified copy of the order of
suspension issued to such person;

(g) in case such person was suspended
previously also, details of the charges, on
which and the period for which he was
suspended
on
previous
occasions
accompanied by certified copies of the
orders on the basis of which he was reinstated.

(2) An employee other than a head of
institution or a teacher may be suspended
by the appointing authority on any of the
grounds specified in Clauses (a) to (c) of
sub-section 5 of Section 16-G.
728 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

(3) उप िनयम (92) के अंतग,त िनलंबन का
कोई आदेश ूभाव म0 नहं रहेगा, जब तक क
ऐसे आदेश के दनांक से साठ दन के भीतर
िनरEक 'वारा
इसका िलखत Fप म0
अनुमोदन न कर दया जय |

17. Needless to mention that there is
no provision under in the U.P. Intermediate
Education Act, 1921 or the Regulation
framed thereunder which deals with issue
that if the person is placed under suspension
and during the period of suspension retired
from service then a disciplinary proceeding
can either be instituted or conducted after
retirement.

18. Hon'ble the Apex Court in the case
of
Bhagirath
Jena
Vs.
Board
of
Directors, O.S.F.S. And others (1999) 3
SCC 666 in para Nos. 6 and 7 held as
under:-

"Para No. 6. It will be noticed from
the abovesaid regulations that no specific
provision was made for deducting any
amount from the provident fund consequent
to any misconduct determined in the
departmental
enquiry
nor
was
any
provision
made
for
continuance
of
departmental enquiry after superannuation.

Para No. 7. In view of the absence of
such provision in the abovesaid regulations,
it must be held that the Corporation had no
legal authority to make any reduction in the
retiral benefits of the appellant. There is
also no provision for conducting a
disciplinary enquiry after retirement of the
appellant and nor any provision stating that
in case misconduct is established, a
deduction could be made from retiral
benefits. Once the appellant had retired
from service on 30.6.95, there was no
authority vested in the Corporation or
continuing the departmental enquiry even
for the purpose of imposing any reduction
in the retiral benefits payable to the
appellant. In the absence of such authority,
it must be held that the enquiry had lapsed
and the appellant was entitled to full retiral
benefits on retirement."

19. The abovesaid view was further
reiterated by Hon'ble the Supreme Court in
the case of State Bank of India and others
Vs. J.J. Paul, (1999) 4 SCC 759.

20. Accordingly, in absence any
provision in the Act, 1921 Rule or
Regulation framed there in which governs
the field for initiating or conducting the
disciplinary proceedings after retirement of
Teacher/Principal
of
the
Intermediate
Institution
the
competent/concerned
authority
after
the
retirement
of
a
Teacher/principal cannot proceed to initiate
or conduct the disciplinary proceedings
after
his
retirement
and
the
entire
disciplinary proceedings if initiated would
laps with the retirement.

21. For the foregoing reasons, once
there is no specific provisions in the in the
U.P. Intermediate Education Act, 1921 or
Regulation framed thereunder for initiation
of a disciplinary proceeding or continuing
the
disciplinary
proceeding
against
petitioner who placed under suspension
after his retirement then the action on the
part of official respondents to withhold his
post retiral dues is an action which is
arbitrary in nature, thus, violative of Article
14 of the Constitution of India as well as
principles of natural justice (See. Rajesh
Kumar Saxena Vs. Bharat Sanchar
Nigam Ltd. and others, [2007 1 ESC 648
(All)
(DB)].
2 All] Smt. Geeta Srivastava V. State of U.P. and others
729

22. In the result, the writ petition is
allowed with a direction to respondents to
pay the petitioner his post retiral dues
treating him to retire from the post of
Principal, Jawahar Lal Nehru Inter College,
Fatehpur Chaurasi, Unnao w.e.f. 30.06.2011
in accordance with law expeditiously
preferably within a period of four weeks
from the date of receiving certified copy of
this order.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.05.2012

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.

Civil Misc. Writ Petition no. 5998 of 1998

Smt. Geeta Srivastava
 ...Petitioner
Versus
State of U.P. & others
 ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare
Sri S.K. Kesarwani
Sri S.K. Kulshreshtha

Counsel for the Respondents:
Sri R.K. Tripathi,
S.C.

Constitution
of
India-Article
226cancellation
of
compassionate
appointment-denied
on
ground
daughter-in-law
is
not
within
the
definition
of
family-held-in
view
of
amendment in Rule enforceable w.e.f
22.12.2011-daughter-in-law included all
in
family
member-cancellation
of
appointment-illegal-direction
to
reinstate and pay arrear of salary within
two month-issued.

Held: Para 8

In view of the above legal proposition as
well as the amendment in the Dying in
Harness Rules, 1974 to include the
widowed
daughter-in-law
in
the
definition of the term 'family', this writ
petition is allowed and the impugned
order dated 15.1.1998 passed by the
Basic
Shiksha
Adhikari,
Fatehpur
is
quashed. The petitioner shall be treated
to be in service with all consequential
benefits. The petitioner will also be
entitled to the arrears of salary which
shall be paid to her within two months
from the date a certified copy of this
order is received by the respondent no.
4-Basic Shiksha Adhikari, Fatehpur.
Case law discussed:
2010 (2) AWC 1606; 2011 (1) UPLBEC 290

(Delivered by Hon'ble B. Amit Sthalekar, J.)

1. In this writ petition the petitioner
is seeking quashing of the order dated
15.1.1998 passed by District Basic
Shiksha Adhikari, Fatehpur rejecting the
claim of the petitioner for appointment on
compassionate grounds on the ground that
the benefit of U.P. Recruitment of
Dependants
of
Government
Servant
(Dying in Harness) Rules, 1974 does not
extend to widowed daughter-in-law and
for a further direction to the respondents
not to interfere in the functioning of the
petitioner as an Assistant Teacher and to
pay the petitioner her regular monthly
salary of the said post.

2. The facts, in brief, are that the
petitioner -Smt. Geeta Srivastava was
married to one Anuj Kumar Srivastava
son of Late Raj Narain Srivastava. The
said Raj Narain Srivastava was employed
as an Assistant Teacher in a Junior Basic
School run by the Board of Basic
Education, U.P. Shri Raj Narain expired
while in service. In the meantime Anuj
Kumar
Srivastava,
husband
of
the
petitioner has also expired leaving behind
his widow, the present petitioner. The