# Jafar Khan v. State of U.P. and others

- **Citation:** (2009) 3 ILRA 1024
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-10-05
- **Case number:** Civil Misc. Writ Petition No. 57675 of 2007
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jafar-khan-v-state-of-u-p-and-others-41452
- **Pages:** 3

## Headnote

Group-D Employees Service-Rule-1985Cancellation of appointment of class 4th
employee- working government Girls
Inter College- Principle is the only
competent authority of order impugned
passed by Secretary- without Notice
opportunity without application of mind
held illegal principle of Natural justice
violated cannot sustain.

Held: Para 12 & 13

In view of the aforesaid and the
undisputed
position
with
regard
to
applicability of the rules, the competent
authority being the Principal, the order
of cancellation, termination or otherwise
could have only been passed by the
Principal of the institution. The State
Government does not have any power
either defined under the aforesaid Rules,
1985 or even as a residuary power to
determine status of employment of a
Class-IV employee of a Government Girls
Degree College.

In view of this, the directions issued by
the State Government and the direction
issued by the Director of Education at
the
best
can
be
administrative
recommendations. The proceedings are
to
be
initiated
by
the
Competent
Authority. Keeping in view Rule 31
referred
to
herein
above
if
the
appointment of the petitioner was illegal
or invalid, the cancellation has to be
initiated
by
the
Principal
of
the
Institution and it is the Principal who has
to issue a notice to the petitioner and to
cancel his appointment. It is admitted in
the counter affidavit that the impugned
orders have emanated without there
being any notice or opportunity to the
petitioner and the Principal has, as a
matter
of
fact
surrendered
his
jurisdiction
in
favour
of
State
Government as well as Director of
Education. This in the opinion of the
Court is impermissible under law.

## Text

1024 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
11. The Apex Court has further held
that in the said circumstances discharge
from service cannot be said to be by way
of punishment. In Sugreev Singh's case
(Supra), the Division Bench has also
taken the same view.

12. After considering all facts and
circumstances of the present case and
decisions of this Court as well as the
Apex Court, I am of view that discharge
of petitioner from service cannot be said
to be illegal or disproportionate.

13. In view of aforesaid fact, the
writ petition is devoid of merits and is
hereby dismissed.

No order is passed as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.10.2009

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 57675 of 2007

Jafar Khan

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

Counsel for the Petitioner:
Sri Rohit Upadhyay

Counsel for the Respondents:
Sri K.K. Chand
Sri Rajesh Kumar Yadav
C.S.C.

Group-D Employees Service-Rule-1985Cancellation of appointment of class 4th
employee- working government Girls
Inter College- Principle is the only
competent authority of order impugned
passed by Secretary- without Notice
opportunity without application of mind
held illegal principle of Natural justice
violated cannot sustain.

Held: Para 12 & 13

In view of the aforesaid and the
undisputed
position
with
regard
to
applicability of the rules, the competent
authority being the Principal, the order
of cancellation, termination or otherwise
could have only been passed by the
Principal of the institution. The State
Government does not have any power
either defined under the aforesaid Rules,
1985 or even as a residuary power to
determine status of employment of a
Class-IV employee of a Government Girls
Degree College.

In view of this, the directions issued by
the State Government and the direction
issued by the Director of Education at
the
best
can
be
administrative
recommendations. The proceedings are
to
be
initiated
by
the
Competent
Authority. Keeping in view Rule 31
referred
to
herein
above
if
the
appointment of the petitioner was illegal
or invalid, the cancellation has to be
initiated
by
the
Principal
of
the
Institution and it is the Principal who has
to issue a notice to the petitioner and to
cancel his appointment. It is admitted in
the counter affidavit that the impugned
orders have emanated without there
being any notice or opportunity to the
petitioner and the Principal has, as a
matter
of
fact
surrendered
his
jurisdiction
in
favour
of
State
Government as well as Director of
Education. This in the opinion of the
Court is impermissible under law.

(Delivered by Hon'ble A.P. Sahi, J.)

1. Heard Sri Bheem Singh, learned
counsel
for
the
petitioner,
learned
standing counsel and Sri K.K. Chand,
learned counsel for respondents No. 1, 2
and 3 and perused the counter affidavit
filed on behalf of the State.
3 All] Jafar Khan V. State of U.P. and others
1025
2. Sri R.K. Yadav, Advocate for
caveator has also been heard under
Chapter 22, Rule 5(A) of the Allahabad
High Court, Rules.

3. The petitioner has come up
against the order dated 27th September,
2007 and 19th October, 2007 whereby the
appointment of the petitioner as Class IV
employee in a Government Girls Degree
College has been cancelled on the ground
that the selections held were invalid.

4. The impugned order also recites
that the petitioner had not filed his
certificate with regard to low-vision
before the Competent Authority and in
spite of that he was selected.
5. The contention raised on behalf of
the petitioner is that the impugned order
dated 27th September, 2007 has been
passed
by
the
Principal
Secretary
Government of U.P. who is not the
Competent Authority to pass any such
order
and
further
the
Director
of
Education had no authority to issue an
order to the Principal of the Institution to
cancel the appointment of the petitioner.
It is urged that the said orders are without
jurisdiction and consequently both the
orders have been passed without giving
any notice or opportunity to the petitioner
and, therefore, it is in violation of the
principles
of
natural
justice.
The
averments to that effect have been made
in paragraph 19 and 26 of the writ
petition. The petitioner has also tried to
justify the certificate issued to him by a
medical practitioner and has urged that,
had
the
petitioner
been
given
an
opportunity,
he
would
have
been
demonstrated that he was fully qualified
and eligible.

6. Lastly, it has been submitted by
Sri Bheem Singh, that the impugned order
has been passed at the behest of a member
of
the
Legislative
Assembly
and,
therefore,
the
impugned
orders
are
vitiated on the ground of malice as well.

7. A counter affidavit has been filed
on behalf of the State as well as also on
behalf of the Caveator who is seeking
impleadment. From the perusal of the
counter affidavit filed on behalf of the
State indicates that the stand taken is that
since the State Government controls all
Government Institutions, therefore, the
Principal of a Degree College is also
under the control of Government and
there is no illegality in the issuance of the
directions
either
by
the
Principal
Secretary or by the Director of Education.

8. So far as opportunity is
concerned, it has been stated in paragraph
16 of the counter affidavit that since the
selections were invalid and illegal,
therefore, there was no necessity of giving
opportunity of hearing to the petitioner.

9. A rejoinder affidavit has also been
filed to the said counter affidavit denying
the aforesaid allegations.

10. Learned counsel for the
proposed respondent has also adopted the
same argument and urged that petitioner
has obtained the appointment illegally and
since his appointment is illegal the
direction issued by the State to cancel the
appointment of the petitioner does not
suffer from any infirmity.

11. It remains undisputed between
the parties that the appointment of a
Class-IV employee of a Government Girls
Degree College has to be made by the
1026 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Principal
of
the
Institution.
The
Competent Appointing Authority has
been defined in Group-D Employees
Service Rules, 1985 and thereafter the
said rules for other matters, makes
provision under Rules 31, that for such
matters which are not specifically covered
under the rules, the rules pertaining to
government servants shall apply.

12. In view of the aforesaid and the
undisputed
position
with
regard
to
applicability of the rules, the competent
authority being the Principal, the order of
cancellation, termination or otherwise
could have only been passed by the
Principal of the institution. The State
Government does not have any power
either defined under the aforesaid Rules,
1985 or even as a residuary power to
determine status of employment of a
Class-IV employee of a Government Girls
Degree College.

13. In view of this, the directions
issued by the State Government and the
direction issued by the Director of
Education
at
the
best
can
be
administrative
recommendations.
The
proceedings are to be initiated by the
Competent Authority. Keeping in view
Rule 31 referred to herein above if the
appointment of the petitioner was illegal
or invalid, the cancellation has to be
initiated by the Principal of the Institution
and it is the Principal who has to issue a
notice to the petitioner and to cancel his
appointment. It is admitted in the counter
affidavit that the impugned orders have
emanated without there being any notice
or opportunity to the petitioner and the
Principal has, as a matter of fact
surrendered his jurisdiction in favour of
State Government as well as Director of
Education. This in the opinion of the
Court is impermissible under law.

14.

Accordingly,
the
orders
impugned are unsustainable and the same
are quashed. The impugned orders dated
27th September, 2007 and 19th October,
2007 are set aside with the direction to the
respondent No. 3 to offer an opportunity
to the petitioner and thereafter proceed to
pass an appropriate order in accordance
with law as expeditiously as possible
preferably within a period of three months
from the date of production of certified
copy of this order before him.

15. It is made clear that the payment
of salary shall be subject to any order
being passed by the Principal.
16. With the aforesaid direction, the
writ petition stands allowed.

No order is passed as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.10.2009

BEFORE
THE HON'BLE SATYA POOT MEHROTRA, J.
THE HON'BLE RAJESH CHANDRA, J.

First Appeal From Order No. 2935 of 2009

New India Assurance Company Ltd.

 ...Defendant/Appellant
Versus
Mohd. Yameen & another ...Respondents

Counsel for the Appellant:
Sri Dhananjay Awasthi

Counsel for the Respondents:

Motor Vehicle Act, 1988-Section 149Third party insurance-duty of insever to
satisfy the award-Tribunal directed the