# Jitendra Mohan Pandey v. State of U.P. & Ors

- **Citation:** (2015) 3 ILRA 1484
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-12-23
- **Case number:** W.P. No. 5584 (SS) of 2010
- **Bench:** Dr. Devendra Kumar Arora
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jitendra-mohan-pandey-v-state-of-u-p-ors-43355
- **Pages:** 8

## Headnote

Intermediate Education Act 1921-Section7-A-read with the U.P. High School &
Intermediate Colleges (Payment of salary
of Teachers and employee) Act 1971Section-9-payment of salary from stateexchequer-teachers in private institution
appointed
by
management-without
creation of post-whether mandamus can be
issued for creation of post and payment of
salary?-held-'No'.
Held: Para-22
In the present case also, the petitioners
were appointed on the post of Assistant
Teacher in the Institution in question by the
Committee of Management on its own,
without their being any valid order issued
by the competent authority. It is also true
that the petitioners were appointed above
the sanctioned strength. In view of Section
9 of the Payment of Salary Act, the
institution can make appointment only
against the post which has been created by
the
order
of
Director
of
Education.
Therefore, in view of the aforesaid Full
Bench
judgments
of
this
Court,
no
mandamus for payment of salary as well as
creation of post of Assistant Teacher in the
Institution in question can be issued while
exercising powers under Article 226 of the
Constitution of India.
Case Law discussed:
(2000(2); 2004 (1) UPLBEC 746; W.P. No.
2054(SS) of 2000 read with W.P. No. 1406
(SS) of 2001; 1999 (35) ALR 191; Special
Appeal Defective No. 673 of 2014; AIR 1995
SC 1121

## Text

1484
 INDIAN LAW REPORTS ALLAHABAD SERIES
allowed. The charge sheet of case no.1289/06,
State v. Dr.Manoj Kuar; Crime no.220/05,
under Section 304-A I.P.C., P.S.Ghazipur,
District Lucknow and the proceedings arising
therefrom including bailable warrant issued on
26.9.2006 by Special C.J.M. (Customs),
Lucknow are quashed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.12.2015
BEFORE
THE HON'BLE DR. DEVENDRA KUMAR
ARORA, J.
W.P. No. 5584 (SS) of 2010
along with W.P. No. 6851 (SS) of 2010
Jitendra Mohan Pandey
 ...Petitioner
Versus
State of U.P. & Ors.
...Opp.Parties
Counsel for the Petitioner:
Om Prakash Mani Tripathi
Counsel for the Opp.Parties:
C.S.C. , Jyotinjay Verma , Niraj Chaurasia
, Omkar Singh and R.P.Verma
Intermediate Education Act 1921-Section7-A-read with the U.P. High School &
Intermediate Colleges (Payment of salary
of Teachers and employee) Act 1971Section-9-payment of salary from stateexchequer-teachers in private institution
appointed
by
management-without
creation of post-whether mandamus can be
issued for creation of post and payment of
salary?-held-'No'.
Held: Para-22
In the present case also, the petitioners
were appointed on the post of Assistant
Teacher in the Institution in question by the
Committee of Management on its own,
without their being any valid order issued
by the competent authority. It is also true
that the petitioners were appointed above
the sanctioned strength. In view of Section
9 of the Payment of Salary Act, the
institution can make appointment only
against the post which has been created by
the
order
of
Director
of
Education.
Therefore, in view of the aforesaid Full
Bench
judgments
of
this
Court,
no
mandamus for payment of salary as well as
creation of post of Assistant Teacher in the
Institution in question can be issued while
exercising powers under Article 226 of the
Constitution of India.
Case Law discussed:
(2000(2); 2004 (1) UPLBEC 746; W.P. No.
2054(SS) of 2000 read with W.P. No. 1406
(SS) of 2001; 1999 (35) ALR 191; Special
Appeal Defective No. 673 of 2014; AIR 1995
SC 1121
(Delivered by Hon'ble Dr. Devendra
Kumar Arora, J.)
1.
Heard Mr. O.P.M. Tripathi, Mr.
Shishir Chandra, learned counsel for the
petitioners, Mr. Neeraj Chaurasiya, learned
counsel for the District Basic Education
Officer, Ambedkar Nagar (opposite party
No.3) and Mr. Omkar Singh, learned counsel
for the Committee of Management (opposite
party No.4).
2.
By means of the above-captioned
writ petitions under Article 226 of the
Constitution of India, petitioners have prayed
for issuance of writ in the nature of
Mandamus directing the opposite parties No.
2-Director, Basic Education, Uttar Pradesh
and opposite party No.3-District Basic
Education Officer, Ambedkar Nagar to
create post of Assistant Teacher (Science) in
Pandit Nehru Smarak, Purwa Madhyamik
Vidyalaya
Sarve
Nikaspur,
District
Ambedkar Nagar, and make payment of
salary in admissible grade of Assistant
Teacher
to
the
petitioners
with
all
consequential benefits w.e.f. the date when
they joined the aforesaid School on the post
of Assistant Teacher (LT Grade) or in the
3 All.
 Jitendra Mohan Pandey Vs. State of U.P. & Ors.
1485
alternative, to create posts of Assistant
Teacher in the School to accommodate
petitioners for the purpose of Payment of
Salary.
3. A brief reference to the factual
aspects
leaving
out
the
maize
of
unnecessary facts would suffice as under :
4.
Pandit Nehru Purwa Madhyamik
Vidyalaya Sarvenikaspur, District Ambedkar
Nagar (hereinafter referred to as the
"Institution"), a recognized institution by the
State Government under the provisions of
Uttar Pradesh Basic Education Act, 1972, is
covered under grant-in-aid scheme of the
State Government w.e.f. 7.4.1980. In order to
impart proper education to the students of the
institution, the Committee of Management
wrote various letters to the District Basic
Education Officer, Ambedkar Nagar to
accord permission to make appointments of
the teachers in the institution but no heed was
paid by the District Basic Education Officer,
Ambedkar
Nagar.
Accordingly,
the
Committee of Management, after intimating
the necessities of the teachers to be appointed
in the institution, advertised four posts of
Assistant Teachers in daily newspapers,
namely, "Mourya Samrat" and "Kabeer
Times" dated 5.8.2008. Thereafter, the
Manager of the Institution wrote a letter to
the
District
Basic
Education
Officer,
informing thereby that four posts of Assistant
Teachers have been advertised on 5.8.2008
through daily newspapers, namely, "Mourya
Samrat"
and
"Kabeer
Times"
and
selection/interview on the aforesaid post is
scheduled to be held on 24.8.2008 and,
therefore, it was requested to send his
representative for holding selection and
interview on the post in question.
5. Pursuant to the advertisement so
issued by the Committee of Management
of the Institution, petitioners applied for
selection and appointment on the post of
Assistant Teacher along
with other
candidates. The Selection Committee so
instituted
by
the
Committee
of
Management had taken interview of the
suitable candidate on 24.8.2008 and
submitted its report to the Committee of
Management. Thereafter, on the basis of
the report of the Selection Committee, the
Committee
of
Management
issued
appointment letters to the petitioners on
the
post
of
Assistant
Teacher.
In
pursuance to the appointment letter, the
petitioners
joined
their
duties
on
27.8.2008 and since then, they are
discharging their duties. The Manager of
the Committee of Management informed
the Basic Education Officer, Ambedkar
Nagar regarding filling up of four posts of
Assistant Teachers in the institution as
well as their joining, but no heed was paid
by the opposite party No.3-District Basic
Education Officer, Ambedkar Nagar,
though various letters having been written
by the Manager of the Institution. In these
compelling circumstances, the petitioners
made representation to the District Basic
Education, praying therein for issue
suitable direction for payment of salary to
the petitioners but no heed was paid.
6. Feeling aggrieved by the inaction
of the opposite parties, petitioners have
filed the above-captioned writ petitions,
with the prayer, as referred hereinabove.
7.
Submission of the learned counsel
for the petitioners is that the petitioners were
appointed on the post in question after
following the procedure of selection strictly
on the basis of quality points obtained by
them. In pursuance to the appointment order
dated 26.8.2008, petitioners resumed their
duties on 27.8.2008 and since then, they have
1486
 INDIAN LAW REPORTS ALLAHABAD SERIES
been discharging their duties to the entire
satisfaction of the authorities concerned. It
has been submitted that under Section 9 of
the
Payment
of
Salaries
Act,
1978
[hereinafter referred to as the "Act"], the
Director is the competent authority to create
the posts as the creation of the posts is in his
sole domain and Section 10 of the Act
imposes liability upon the State Government
to ensure payment of salary to the teachers
and other employees of every institution in
respect of any period after the date of
appointment. His submission is that in the
institution in question, six sections are
approved to be run and as per the prescribed
norms, 9 teachers are required to be deputed
to impart education at the rate of 11/2
teachers for one section. In the Institution in
question, six posts are sanctioned, whereas as
per the norms, nine posts ought to have been
sanctioned by the competent authority.
8. Elaborating his submissions,
counsel for the petitioners submitted that
two posts of Assistant Teacher resulted on
account of retirement of Sri R.D. Verma
in the year 2008 and in 2009, on
retirement of Sri Shyam Raj Mourya,
whereas the third post of Assistant
Teacher
had
become
available
on
30.6.2012 on account of retirement of Sri
Upendra Mohan Tiwari. Thus, in the
institution in question, total sanctioned
posts of Assistant Teacher are five
including one post of Head Master and
out of five posts, three posts are lying
vacant. Therefore, the opposite parties
may be directed to accommodate the
petitioners against the vacant posts and be
paid salary accordingly.
9. It has been stated that once the
institution is recognized and comes within
the definition of Section (e) of Section 2
of the Uttar Pradesh Junior High School
(Payment of Salary to the teachers and
other employees) Act, 1972 and receives
grant as defined under Section (f) of the
Act, the State is liable to make payment
of salary to the petitioner as they are
imparting education in the institution in
the subject Science w.e.f. 27.8.2008.
Therefore, in denying salary to the
petitioners is violative of Article 14 and
16 of the Constitution of India.
10. In support of his submissions,
learned counsel for the petitioners have
placed reliance upon the judgment of the
Apex Court rendered in Chandigarh
Administration and others Vs. Rajni Vali
(Mrs.) and others (2000 (2) SCC 442) and
this Court's judgment reported in 2004 (1)
UPLBEC 746 : Committee of Managment
Jaribandhan Higher Secondary School,
Baij Nath Ganj, Goriganj, Allahabad and
another Vs. State of U.P. and others and
Committee of Management, Anand Singh
Intermediate College, Pratapgarh Vs.
State of U.P. and others (writ petition No.
2054 (SS) of 2000) read with writ petition
No. 1406 (SS) of 2001 : Anand Prasad
Tiwari and others Vs. State of U.P. and
others, decided on 9.2.2004.
11. Per contra, Mr. Neeraj Chaurasiya,
learned counsel for the opposite party No.3District Basic Education Officer, Ambedkar
Nagar, has submitted that the Basic
Education Officer, Ambedkar Nagar had
wrote letter dated 4.9.2015 and thereafter
reminder dated 14.9.2015, seeking the
information from the Additional Director
Education (Basic) with regard to the letter
dated 26.9.1992 written by the Assistant
Director Education (Basic) addressed to the
Additional
Director
Education
(Basic),
whereby recommendation of the the District
Basic Education was forwarded for creation
of three additional post of Assistant Teacher
3 All.
 Jitendra Mohan Pandey Vs. State of U.P. & Ors.
1487
in the institution. In reply to the aforesaid
letter, vide letter dated 16.9.2015, the District
Basic Education Officer was informed by the
Education Directorate, Allahabad that after
examination of record, it was found that the
matter has not been received in the
Directorate and the Assistant Director
Education (Basic) Faizabad has not sent any
subsequent correspondence in this regard,
therefore, the question of issuing the post
creation order/permission does not arise at
all.
12. Mr. Neeraj Chaurasiya has
further contended that as per Government
Order dated 2.7.1990, presently, only one
post of Head Master, four Assistant
Teacher, and one Clerk is permissible in
the institution and at the time of
appointment
of
petitioners
in
the
institution in question, four teachers were
already working in the institution.
13.
Elaborating his submissions, Mr.
Neeraj Chaurasiya has submitted that on
21.8.2015, the Block Education Officer,
Jahangirgunj, Ambedkar Nagar has made the
inspection of the institution in question and
during inspection, in Class-VI, against the 23
students enrolled only 13 were found present,
in Class-VII, against 37 students enrolled,
only 11 were found present and in ClassVIII, against 42 students enrolled, only 19
were found present in the institution. In these
backgrounds, Mr. Chaurasiya has submitted
that since the appointments of the petitioners
are de horse the Rules, therefore, the present
writ petition deserves to be dismissed.
14. I have heard learned Counsel for
the parties and perused the records.
15. In order to appreciate the
submissions of the learned Counsel for
the parties, it is apt to mention here that
two Full Benches of this Court have held
that creation of post under Section 9 of
U.P. Act No. 24 of 1971, is a condition
precedent before a writ of mandamus to
pay salary to the teachers appointed from
State Exchaquer can be issued. Reference
may be made to the decisions rendered in
Gopal Dubey vs. District Inspector of
Schools :1999 (35) ALR 191 and State of
U.P. through its Secretary, Secondary
Education & Ors. Vs. C/M, Sri Sukhpal
Intermediate College, Tirhut, Sultanpur &
Ors. (Special Appeal Defective No.673 of
2014 decided on 12.5.2015).
16. In Gopal Dubey (supra), the issue
which fell for consideration before the Full
Bench of
this Court was whether a
presumption can be drawn that the post of a
Lecturer stands sanctioned by the Director of
Education merely because recognition has
been granted by the Board in respect of a
subject under the Act of 1921. The following
issue was formulated:
"Whether
on
recognition
being
granted by the Board in respect of a
subject in an Institution under Section 7-A
of the U.P. Intermediate Education Act,
1921 ( (U.P. Act No. II of 1921), it will be
presumed that the post of Lecturer in such
subject stands sanctioned by the Director
of Education under Section 9 of the
Payment of Salaries Act?"
17.
The Full Bench in that case
rejected the submission that since the
Director of Education is an ex officio
Chairman of the Board under the Act of
1921 and the Board had accorded its
recognition to the institution for a particular
subject, it must be presumed that the
Director had sanctioned the post of a
Lecturer in the subject. Dealing with the
submission, the Full Bench held as follows:
1488
 INDIAN LAW REPORTS ALLAHABAD SERIES
"...This
contention
does
not
commend acceptance. Section 9 of the
Payment
of
Salaries
Act
expressly
mandates that no Institution shall create a
new post of teacher or other employee
except with the previous approval of the
Director or such other officer as may be
empowered in that behalf by the Director.
Since the statute requires the thing to be
done in a particular manner, then it has to
be done in that manner or not at all. It
follows, therefore, that prior approval of
the Director in writing must be obtained
before the management creates a new post
of teacher in the recognised Institution.
The requirement of the statute cannot be
presumed because the Director happens to
be the authority or one of the authorities
concerned in the matter of accord of
recognition for opening a new subject in a
College. It is relevant to note here that
recognition for opening a subject in a
College is accorded by the Director under
the
provisions
of
the
Intermediate
Education Act, which is a statute to
establish a Board to regulate and
supervise the system of High School and
Intermediate Education in Uttar Pradesh,
prescribe courses therefor and oversee
related activities ; whereas the Payment of
Salaries Act is enacted to regulate the
payment of salaries to teachers and other
employees of the High Schools and
intermediate Colleges and to provide for
matters connected therewith. The two
statutes, in our considered view, operate
in different fields. While dealing with
matters like recognition and payment of
salary of teachers and other employees
relevant
matters
to
be
taken
into
consideration are different. Regarding
recognition, the authority has to satisfy
itself about necessary infrastructure, the
facilities available in the Educational
Institution, the benefit to the students of
the locality in opening the new subject in
the Institution, the potentiality of the
Institution to cater to the needs of the
students of the locality, etc. While dealing
with the question of granting approval for
creation of a post of a teacher or other
employee in an Institution, the primary
consideration is the preparedness of the
State Government to bear the financial
liability of the new post proposed to be
created. It follows, therefore, that the
contention that since the Director is
associated with the matter regarding grant
of permission/ recognition for opening
new subject in the Institution, it is
presumed that he has given his consent
for creating new posts of teachers and
other employees for that subject is not
correct. This contention, if accepted, may
lead to situation that the management
creates posts of teachers and other
employees in connection with the new
subject and the State Government is
compelled to bear the financial liability
without any further involvement in the
matter. Such a situation, as we read the
provisions of the two enactments, is not
contemplated. It also does not appeal to
common logic. The result is that for the
purpose of creating a new post of teacher
or other employee for/in connection with
a new subject, which it has been permitted
to open, the management has to obtain
prior approval of the Director as required,
under Section 9 of the Payment of
Salaries Act. This statutory mandate
cannot be said to have been satisfied by
raising a presumption on the basis of
recognition granted for that subject."
18. In taking this view, the Full Bench
placed reliance on the judgment of the
Supreme Court in Director of Education Vs
Gajadhar Prasad Verma :AIR 1995 SC 1121.
The Supreme Court in that case has held that
3 All.
 Jitendra Mohan Pandey Vs. State of U.P. & Ors.
1489
in view of Section 9 of the Payment of
Salaries Act of 1971, no institution could
create new posts of teachers or other
employees except with the previous approval
of the Director and the failure of the
management to obtain prior approval disentitled it to obtain reimbursement of the
salary of such a teacher or employee. The
Supreme Court held as follows:
"4. Be that as it may, the crucial
question is whether the school of the
respondent can claim reimbursement of the
salary of such clerk from the Government?
The U.P High Schools and Intermediate
Colleges (Payment of Salaries of Teachers
and Other Employees) Act, 1971 (24 of 197
1), regulates the payment of the salary by the
Government. Section 9 is relevant in that
behalf. It provides that no institution shall
create a new post of teacher or other
employee except with the previous approval
of the Director or such officer as may be
empowered in that behalf by the Director.
Admittedly, no steps have been taken by the
Management to have obtained prior approval
of the Director or any other authorised officer
for creation of the additional post of clerk.
The prior approval of the Director or the
empowered officer is a condition precedent
and mandatory, for creation of an additional
post of a teacher or other employee. The
reason behind Section 9 is that prior to grant
of aid the Government had before it the
relevant data of the posts for which the grant
of aid was sanctioned. To make the
Government to reimburse the salary of an
additional teacher or an employee, the
Government should have similar relevant
material and data to have it duly verified and
decision taken to grant sanction of the
additional post. The inspecting and reporting
officers are enjoined to make personal
inspection and submit the report of the
existing correct facts. The dereliction of duty
or incorrect or false reports would be
misconduct entailing them to disciplinary
action for dismissal from the posts held by
them. Therefore, the failure to obtain prior
approval disentitles the Management to
obtain reimbursement of the salary of such
teacher or other employee."
(emphasis supplied)
19. In C/M Sri Sukhpal Intermediate
College (supra), the Full Bench, in which
I was also one of the Members, were
formulated four questions, which reads as
under :
(1) Whether in the absence of any
sanctioned post, can a direction in the exercise
of powers under Article 226 of the
Constitution of India be given for payment of
salary when admittedly no post has been
sanctioned by the competent authority;
(2) Which of the two decisions in the
case of Rajesh Yadav (supra) and Om
Prakash Verma (supra) keeping in view
the Full Bench decision in the case of
Gopal Dubey (supra), lays down the law
correctly;
(3) Whether the State Government or
its authorities, who are authorized to
create posts, by virtue of their inaction
can defy creation of posts in an institution
keeping in view the larger interest of the
society
namely
education
which
is
specifically in the hands of the State
Government; and
(4)
Whether the State Government
under the garb of threat of contempt could
proceed to issue a direction for payment of
salary to a teacher who was never appointed
in the institution as admitted in the present
case."
20. The Full Bench, while dealing
with the aforesaid questions, have taken
1490
 INDIAN LAW REPORTS ALLAHABAD SERIES
note of the provisions contained in three
statutes in the State of Uttar Pradesh,
which are as under :
(i) The Uttar Pradesh High School
and Intermediate Colleges (Payment of
Salaries
of
Teachers
and
Other
Employees) Act, 1971;
(ii) The Intermediate Education Act,
1921; and
(iii) The Uttar Pradesh Secondary
Education Services Selection Board Act,
1982.
21. On considering the relevant
provisions of the aforesaid Act and also
the decision of the Full Bench in Gopal
Dubey (supra), Om Prakash Verma
(supra) and Rajesh Yadav (supra), the
Full Bench has come to the conclusion
that in the absence of a sanctioned post,
the High Court under Article 226 of the
Constitution would not be justified in
issuing a mandamus for the payment of
salary, particularly since a mandamus
cannot lie in the absence of a legal right,
based on the existence of a statutory duty.
The relevant portion of the judgment is
reproduced as under :
"In our view, the field of dispute in the
present case, is governed by the judgment of
the Full Bench in Gopal Dubey (supra). The
judgment in Gopal Dubey clearly holds that
the Act of 1971 operates in a field which is
distinct from the Act of 1921. The mere fact
that recognition has been granted to an
institution or, for that matter, for conducting
a new course or subject or for an additional
section, would not give rise to a presumption
of a financial sanction having been granted to
the creation of a post. A financial liability
cannot be foisted on the State to reimburse
the salary payable to the employee or the
teacher on the basis of such a presumption.
For the purpose of creating a new post of a
teacher or other employee, the management
has to obtain the prior approval of the
Director as required under Section 9 of the
Act 1971. Without the prior approval of the
Director, a new post cannot be sanctioned or
created. Section 9 is mandatory. This
principle in Gopal Dubey's case follows
specifically the judgment of the Supreme
Court in Gajadhar Prasad Verma's case
which was rendered while interpreting the
provisions of Section 9 of the Act of 1971.
The High Court cannot issue a direction
contrary to the mandate of Section 9. Orders
under Article 226 must conform to law and
cannot be contrary to the mandate of law. No
mandamus can issue - interim or final - for
the payment of salary by the state in the
absence of the prior approval of the
Director."
22.
In the present case also, the
petitioners were appointed on the post of
Assistant Teacher in the Institution in
question by the Committee of Management
on its own, without their being any valid
order issued by the competent authority. It is
also true that the petitioners were appointed
above the sanctioned strength. In view of
Section 9 of the Payment of Salary Act, the
institution can make appointment only
against the post which has been created by
the order of Director of Education.
Therefore, in view of the aforesaid Full
Bench judgments of this Court, no
mandamus for payment of salary as well as
creation of post of Assistant Teacher in the
Institution in question can be issued while
exercising powers under Article 226 of the
Constitution of India.
23. For the reasons aforesaid, this
Court is of the view that the judgments,
which have been relied by the learned
Counsel for the petitioners, are not
3 All.
 Daya Ram Vs. State of U.P.
1491
applicable in the facts and circumstances
of the case and the writ petition is liable
to be dismissed.
24. Accordingly, the writ petitions
are dismissed. However, there is no order
as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.12.2015
BEFORE
THE HON'BLE RAJAN ROY, J.
Service Single No. 5907 of 2009
Daya Ram
 ...Petitioner
Versus
State of U.P.
...Respondent
Counsel for the Petitioner:
Dhruv Kumar
Counsel for the Respondent:
C.S.C.
Constitution of India, Art.-226-read with
U.P. Government Servant (Discipline and
Appeal )Rules 1999-Rule 7 (i)-dismissal
from service-order passed mechanically
without
considering
the
conduct
of
petitioner on conviction-held in view of
Tulsi Ram Patel as well as Divisional Officer
Southern
Railway-order
quashed
with
liberty to pass fresh order.
Held: Para-6
In view of the above, the impugned order
dated 18.05.2009 can not be sustained and
the same is accordingly quashed, however,
with liberty to the Disciplinary Authority to
take afresh decision keeping in mind the
legal position narrated herein above within
a period of two months from the date of
production of a certified copy of this order.
Consequences shall follow as per law.
Case Law discussed:
1985 (3) SCC 398; 1976 (1) SCR 783
(Delivered by Hon'ble Rajan Roy, J.)
1. Heard learned counsel for the
parties.
2.
The petitioner was employed as
Statistical Assistant in the National Savings
Directorate under the State Government. He
was involved in a criminal case under
Section 304 Part-I/149 I.P.C. wherein after
trial he was convicted by the Court of
criminal jurisdiction on 24.04.2009. His
appeal against the same is pending wherein
he has been enlarged on bail.
3. Consequent to his conviction, the
petitioner was dismissed from service
vide order dated 18.05.2009 passed by the
Additional Director Savings, U.P.
4. On a perusal of the order of
dismissal it is revealed that the same has
been passed mechanically merely on the
ground of conviction. The legal position
is very well settled that a conviction does
not automatically lead to dismissal,
removal, reduction in rank etc. The
Disciplinary Authority has to pass an
order in this regard in writing. It is
required to consider the conduct which
has led to his conviction and based on
such consideration of conduct a final
opinion has to be formed as to whether
any punishment is required to be imposed
upon him or not. This is the requirement
under Article 311 (2) of the Proviso as
also Proviso (i) of Rule 7 of the U.P.
Government
Servants
(Discipline
&
Appeal) Rules, 1999 and the law laid
down by the Hon'ble Supreme Court in
the case of Union of India Vs. Tulsi Ram
Patel, 1985(3) SCC 398 which still holds
the ground. In the case of Tulsi Ram Patel
(Supra), the Supreme Court observed and
held as under:-