# Kapoor (Smt.) v. Additional Collector(Finance & Revenue), Ghaziabad AIR (2008) 4 ALJ 363)

- **Citation:** (2015) 1 ILRA 331
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-03-12
- **Case number:** Writ -A No. 28337 of 2009
- **Bench:** Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kapoor-smt-v-additional-collector-finance-revenue-ghaziabad-air-2008-4-alj-363-43147
- **Pages:** 10

## Headnote

U.P. Government Servant Conduct Rules
1956-Rule 29-Police constable-dismissed
on allegation of bigamy-in departmental
enquiry-petitioner admitted the second
marriage-only
explanation
that
with
consent of first wife as per practice
developed in rural area-second marriage
took place-Child Marriage Restraint Act
1929, again Prohibition on child Marriage
2006-such custom depriving from basic
human right-held such punishment not
shock the conscience of Court-warrants
no interference.
Held: Para-17
Bearing in mind the above, this Court
finds
itself
unable
to
accept
the
submissions advanced by the learned
counsel for the Petitioner. The bane of
child marriage has been sought to be
removed by our country for centuries.
Legislation to end this cursed custom
was enacted as far back as 1929 in the
form of the Child Marriage Restraint Act,
1929 and subsequently replaced by the
Prohibition of Child Marriage Act, 2006.
The custom not only amounts to child
abuse, it deprives the girl child of basic
human rights. A member of the police
force is charged with the duty of
maintaining
the
law, upholding
the
standards
of
a
civil
society.
The
punishment, viewed in light of the above
facts, does not shock the conscience of
this Court warranting substitution of the
choice made by the administrator.
332
 INDIAN LAW REPORTS ALLAHABAD SERIES
Case Law discussed:
[2010 (3) ADJ 487]; (2014) 9 SCC 315; (2014)
4 ADJ 612; Civil Appeal No. 1662 of 2015
decided on 09.02.2015.

## Text

1 All] Ram Pratap Singh Vs. State of U.P. & Ors.
331
Kapoor
(Smt.)
versus
Additional
Collector(Finance
&
Revenue),
Ghaziabad AIR (2008) 4 ALJ 363).
55. For the reasons and law stated
herein above, the impugned order dated
26.4.2013
passed
by
the
second
respondent, Collector Jaunpur is quashed.
56. The matter is remitted back to the
Collector, Jaunpur for redetermination of the
market value of the property in the light of
the direction and observation made in the
judgement within three months from the date
of service of certified copy of this order.
57. Subject to above, the writ
petition stands allowed.
58. The approach of the Collector in
determining the market value despite the
direction of this Court dated 29.1.2013
was a very casual and not based on the
parameter of settled position of law in
determining the market value of a
property under the Act. The Collector
instead of returning the determination as
directed by the Court, merely reiterated
the earlier reasoning and enhanced the
penalty which was not called for. I am of
the opinion that the petitioner has been
subjected to the unnecessary hardship and
inconvenience for having to resolve the
writ proceedings for quashing the order.
The petitioner is therefore, entitled to
costs which is quantified at Rs.50,000/-
payable by the Collector, Jaunpur. It will
be open for the State to recover the cost
from the salary of the then Collector,
Jaunpur.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.03.2015
BEFORE
THE HON'BLE YASHWANT VARMA, J.
Writ -A No. 28337 of 2009
Ram Pratap Singh
...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Kripa Shanker Singh, Sri A.K. Singh,
Sri Anil Kumar Aditya
Counsel for the Respondents:
C.S.C.
U.P. Government Servant Conduct Rules
1956-Rule 29-Police constable-dismissed
on allegation of bigamy-in departmental
enquiry-petitioner admitted the second
marriage-only
explanation
that
with
consent of first wife as per practice
developed in rural area-second marriage
took place-Child Marriage Restraint Act
1929, again Prohibition on child Marriage
2006-such custom depriving from basic
human right-held such punishment not
shock the conscience of Court-warrants
no interference.
Held: Para-17
Bearing in mind the above, this Court
finds
itself
unable
to
accept
the
submissions advanced by the learned
counsel for the Petitioner. The bane of
child marriage has been sought to be
removed by our country for centuries.
Legislation to end this cursed custom
was enacted as far back as 1929 in the
form of the Child Marriage Restraint Act,
1929 and subsequently replaced by the
Prohibition of Child Marriage Act, 2006.
The custom not only amounts to child
abuse, it deprives the girl child of basic
human rights. A member of the police
force is charged with the duty of
maintaining
the
law, upholding
the
standards
of
a
civil
society.
The
punishment, viewed in light of the above
facts, does not shock the conscience of
this Court warranting substitution of the
choice made by the administrator.
332
 INDIAN LAW REPORTS ALLAHABAD SERIES
Case Law discussed:
[2010 (3) ADJ 487]; (2014) 9 SCC 315; (2014)
4 ADJ 612; Civil Appeal No. 1662 of 2015
decided on 09.02.2015.
(Delivered by Hon'ble Yashwant Varma, J.)
1. The petitioner seeks to assail the
validity of the order dated 16.10.2008
passed by the respondent No.2 in terms of
which he stood dismissed from service in
exercise of powers conferred upon the
said authority by the U.P. Police Officers
of the Subordinate Ranks (Punishment
and Appeal) Rules 1991. The aforesaid
order of punishment came to be imposed
upon the petitioner on culmination of
departmental proceedings initiated against
him on the charge of having consummated a
second marriage without the permission of
the appropriate authority. The charge
asserted that the aforesaid conduct of the
petitioner was in violation of Rule 29 of the
U.P. Government Servant Conduct Rules
1956. The order of termination also stood
confirmed in appeal by the respondent No.3
vide his order dated 30.01.2009 and in
revision by the respondent No.4 by his
order dated 26.12.2009.
2. The undisputed facts, which
emerge from the record, appear to be that
the petitioner was appointed as a
Constable
in
the
Civil
Police
on
01.08.1972. During the course of his
career, he rose to become a Head
Constable and was drawing salary in the
grade of Sub Inspector.
3. It appears that one Smt. Hausila
Devi asserting herself to be the first wife
of the petitioner made a complaint to the
respondents alleging ill treatment having
been meted out to her. It was at this stage
that the petitioner having committed the
misconduct of bigamy came to light.
4. Taking cognizance on the
complaint made by Smt. Hausila Devi, a
show cause notice was issued to the
petitioner on 04.08.2008 for violation of
the Rules 1956, referred to above. Finding
the reply of the petitioner to the aforesaid
show cause notice to be unsatisfactory, a
charge sheet dated 25.04.2008 was served
upon him and to which a detailed reply
was submitted by the petitioner on
05.05.2008.
Disciplinary
proceedings
taken against the petitioner culminated in
a report dated 05.06.2008 being submitted
by the Enquiry Officer.
5. It becomes relevant to note here
that the Enquiry Officer in the course of
those proceedings recorded the statements
of the first wife of the petitioner viz., Smt.
Hausila Devi as well as his second wife
Smt. Geeta Devi.
6. The first wife of the petitioner in
these proceedings made a statement that
she had been married to the petitioner in
1965 at a time when he was unemployed
and that he subsequently married Smt.
Geeta Devi in 1978 with her consent. She
further submitted that she had no cause
for complaint against the petitioner who
makes
adequate
provisions
for
her
livelihood. The second wife of the
petitioner also stated that she had been
married to the petitioner in 1978 with the
consent of his first wife and that out of
wedlock she along with the petitioner was
looking after a family comprising of 4
children. The Enquiry Officer while
returning a finding that the factum of
bigamy stood admitted and proved from
the statements of persons who had
deposed before him
found that the
petitioner
had
not
obtained
any
permission of the appropriate authority
and accordingly recommended that three
1 All] Ram Pratap Singh Vs. State of U.P. & Ors.
333
annual increments of the petitioner be
stopped.
7. After receipt of the aforesaid
report and the representation of the
petitioner
in
respect
thereof,
the
respondent No.2 found that the petitioner
had not obtained any permission for
contracting the second marriage and that
his contention that he had obtained such
permission from his Platoon Commandant
was not liable to be accepted as he was
not the appropriate authority under the
relevant rules. He accordingly proceeded
to impose the punishment of dismissal
upon the petitioner by an order dated
16.10.2008. It is this order, which has
been affirmed by the respondent Nos. 3
and 4 in appeal and revision and are
impugned in the present writ petition.
8. Learned counsel for the petitioner
has
submitted
that
the
punishment
imposed upon the petitioner is clearly
disproportionate inasmuch as in his entire
service of 36 years, he was not found
guilty of wrong doing or misconduct. He
has submitted that his first marriage had
occurred at a time when he was only a
minor and was studying in Class XI. He
has
submitted
that
the
petitioner
belonging to a poor family was perhaps
got married of in terms of the age old
custom of child marriage prevailing in the
rural areas of the country. He has
submitted that the petitioner was only 14
years of age when he was married to Smt.
Hausala Devi and that such a marriage
was not liable to be countenanced at all.
He would contend that in fact the
petitioner contracted the second marriage
in 1978 on the proposal and with the
consent of his first wife. He therefore
submitted that the authorities should have
taken a lenient view in the matter.
9.

Learned
standing
counsel
opposing the writ petition has however
contended that once the factum of bigamy
was accepted and admitted to the
petitioner, the charge stood fully proved
and therefore the respondents rightly
dismissed the petitioner from service in
the absence of any permission of the
appropriate authority. He has submitted
that the punishment imposed upon the
petitioner, who was a member of the
police force, could not be termed as
disproportionate
in
the
facts
and
circumstances of the case.
10. Having heard learned counsel
for the parties, this Court finds that the
fact that the petitioner was only a minor
and 14 years of age when he was married
of for the first time in 1965 is not
disputed. This fact is an embodiment of
the age old curse and malady of child
marriages, which unfortunately prevailed
at the time in our country. This practice
was more prevalent in the rural areas of
our country, despite the promulgation of
legislation to counter such practices. It is
also not disputed by the parties that the
first wife of the petitioner appeared in the
proceedings and in fact admitted the
above and also stated that the petitioner
entered into the second marriage with her
consent.
11. Be that as it may, from the
records it is apparent that the factum of
second marriage is admitted to the
Petitioner. This is not a case where the so
called child marriage stood annulled as
provided
in
law.
Insofar
as
prior
permission of the appropriate authority is
concerned, the Petitioner failed to prove
the
same
before
the
Disciplinary
Authority. The sole question, therefore,
which in the opinion of this Court, falls
334
 INDIAN LAW REPORTS ALLAHABAD SERIES
for consideration would be whether the
punishment inflicted upon the Petitioner,
is disproportionate to the misdemeanor
alleged.
12. On this score, the Petitioner has
placed strong reliance upon the judgment
rendered by a Learned Single Judge of
this Court in Pancham Giri Vs State of
U.P. And others [2010 (3) ADJ 487]
wherein this Court made the following
observations:-
"To allow a man to peacefully
continue to almost complete his journey
as a public servant for 28 years and then
make him stand at the edge of cliff and
and
push
him
over,
resting
the
justification in law as misconduct, has to
be observed, to my mind with a tittle
diluted but human approach. The reason
is his exceptionally long period of service.
It is true that passage of time will not
reduce the guilt, but the punishment can
be proportioned with an approach towards
the lesser punishments that are available
in the rules itself. The mind has to be
applied to find out a reason, in the
peculiar facts of a case like the present
one as to why the lesser punishments
would not be appropriate when they have
been provided under the same rules. This
takes one to the gravity of the misconduct
which in this case became a discovery
after 28 years. It is here where one's sense
of mature justice is brought to test. The
proportionality
of
the
punishment
therefore requires a careful measurement
on the scales of reason and justice
combined. Merely because it is a serious
misconduct,
does
not
necessarily
categorise it for the extreme penalty of
dismissal. It has to be assessed on its own
facts and the nature of the indiscipline.
The petitioner has not runaway with
somebody's elses wife so as to bracket the
action involving moral turpitude nor has
he attempted to shield himself on any
such count. His case has been consistent
throughout supported by his first wife.
These factors, which are the other side of
the coin have not been assessed by the
authorities appropriately which do require
a consideration. The conscience of the
Court on the above noted principles has
been thoroughly disturbed which in my
opinion calls upon my "conscious"
approach to command the authorities to
invoke the principle of proportionality.
The petitioner has to live with a disrepute
of misconduct but that can be done with a
lesser punishment without putting the
entire family of the petitioner to peril.
That would be unjustly outrageous.
To my mind, the said aspect has to
be considered in the backdrop of the
aforesaid facts. The continuance of the
petitioner at the fag end of his career was
found detrimental to a disciplined force
which may in given circumstances be
correct, but in my opinion, the said aspect
deserves
an
examination
by
the
appropriate authority as it strikingly
moves the conscience to the extent as to
why a lesser major penalty would not
serve the purpose. Even though the Rules
do not indicate any other penalty like
compulsory retirement but the same can
be explored by the appropriate authority
in the given set of circumstances provided
it is permissible under rules.
The conduct of the petitioner was an
absolute personal affair of the petitioner
in relation to the consummation of second
marriage and the same had got nothing to
do with the affairs of the State or the
discharge of his public duty to that extent.
The judgment in the case of Amal Kumar
Baruah of the Guwahati High Court
(supra) comes to the aid of the petitioner."
1 All] Ram Pratap Singh Vs. State of U.P. & Ors.
335
13. This submission advanced by the
counsel for the Petitioner and the only
issue in fact which in the opinion of this
Court falls for determination must be
considered and approached bearing in
mind the parameters of judicial review set
for exercise of power upon this Court. To
bear in mind the contours of this exercise,
one may usefully refer to what the
Hon'ble Supreme Court of India stated in
LIC Vs. S. Vasanthi (2014) 9 SCC 315:-
"10. The scope and power of judicial
review of the courts while dealing with
the validity of quantum of punishment
imposed by the disciplinary authority is
now well-settled. In Kendriya Vidyalaya
Sangthan v. J. Hussain, the law on this
subject, is recapitulated in the following
manner: (SCC pp. 110-12, paras 7-10)
"7. When the charge is proved, as
happened in the instant case, it is the
disciplinary authority with whom lies the
discretion to decide as to what kind of
punishment is to be imposed. Of course,
this discretion has to be examined
objectively keeping in mind the nature
and
gravity
of
the
charge.
The
disciplinary authority is to decide a
particular penalty specified in the relevant
Rules. A host of factors go into the
decision making while exercising such a
discretion which include, apart from the
nature and gravity of misconduct, past
conduct, nature of duties assigned to the
delinquent,
responsibility
of
duties
assigned to the delinquent, previous
penalty, if any, and the discipline required
to be maintained in department or
establishment where he works, as well as
extenuating circumstances, if any exist.
8. The
order of the appellate
authority while having a relook at the case
would, obviously, examine as to whether
the
punishment
imposed
by
the
disciplinary authority is reasonable or not.
If the appellate authority is of the opinion
that the case warrants lesser penalty, it
can reduce the penalty so imposed by the
disciplinary authority. Such a power
which vests with the appellate authority
departmentally is ordinarily not available
to the court or a tribunal. The court while
undertaking judicial review of the matter
is not supposed to substitute its own
opinion on reappraisal of facts. (See UT
of Dadra & Nagar Haveli v. Gulabhia M.
Lad.) In exercise of power of judicial
review, however, the court can interfere
with the punishment imposed when it is
found to be totally irrational or is
outrageous in defiance of logic. This
limited scope of judicial review is
permissible and interference is available
only when the punishment is shockingly
disproportionate, suggesting lack of good
faith. Otherwise, merely because in the
opinion of the court lesser punishment
would have been more appropriate,
cannot be a ground to interfere with the
discretion of the departmental authorities.
9. When the punishment is found to
be outrageously disproportionate to the
nature
of
charge,
principle
of
proportionality comes into play. It is,
however, to be borne in mind that this
principle would be attracted, which is in
tune with doctrine of Wednesbury rule of
reasonableness, only when in the facts
and circumstances of the case, penalty
imposed is so disproportionate to the
nature of charge that it shocks the
conscience of the court and the court is
forced to believe that it is totally
unreasonable and arbitrary. This principle
of proportionality was propounded by
Lord Diplock in Council of Civil Service
Unions v. Minister for Civil Service in the
following words: (AC p. 410 D-E)
336
 INDIAN LAW REPORTS ALLAHABAD SERIES
''... Judicial review has I think
developed to a stage today when without
reiterating any analysis of the steps by
which the development has come about,
one can conveniently classify under three
heads of the grounds upon which
administrative action is subject to control
by judicial review. The first ground I
would
call
"illegality",
the
second
"irrationality" and the third "procedural
impropriety". This is not to say that
further development on a case by case
basis may not in course of time add
further
grounds.
I
have
in
mind
particularly the possible adoption in the
future
of
the
principle
of
"proportionality".'
10. An imprimatur to the aforesaid
principle was accorded by this Court as
well in Ranjit Thakur v. Union of India.
Speaking for the Court, Venkatachaliah, J.
(as he then was) emphasising that ''all
powers have legal limits' invokes the
aforesaid doctrine in the following words:
(SCC p. 620, para 25)
''25. ... The question of the choice
and quantum of punishment is within the
jurisdiction and discretion of the court
martial. But the sentence has to suit the
offence and the offender. It should not be
vindictive or unduly harsh. It should not
be so disproportionate to the offence as to
shock the conscience and amount in itself
to conclusive evidence of bias. The
doctrine of proportionality as part of the
concept of judicial review, would ensure
that even on an aspect which is,
otherwise, within the exclusive province
of the court martial, if the decision of the
court even as to sentence is an outrageous
defiance of logic, then the sentence would
not
be
immune
from
correction.
Irrationality and perversity are recognised
grounds of judicial review.'"
11. We are of the opinion that the
High Court transgressed its limits of
judicial review by itself assuming the role
of sitting as a departmental appellate
authority, which is not permissible in law.
The principles discussed above have been
summed up and summarised as follows in
Lucknow Kshetriya Gramin Bank v.
Rajendra Singh: (SCC p. 382, para 19)
"19.1. When charge(s) of misconduct
is proved in an enquiry the quantum of
punishment to be imposed in a particular
case is essentially the domain of the
departmental authorities.
19.2. The courts cannot assume the
function
of
disciplinary/departmental
authorities and to decide the quantum of
punishment and nature of penalty to be
awarded, as this function is exclusively
within the jurisdiction of the competent
authority.
19.3. Limited judicial review is
available to interfere with the punishment
imposed by the disciplinary authority,
only in cases where such penalty is found
to be shocking to the conscience of the
court.
19.4. Even in such a case when the
punishment is set aside as shockingly
disproportionate to the nature of charges
framed against the delinquent employee,
the appropriate course of action is to remit
the matter back to the disciplinary
authority or the appellate authority with
direction to pass appropriate order of
penalty. The court by itself cannot
mandate as to what should be the penalty
in such a case.
19.5. The only exception to the
principle stated in para 19.4 above, would
be in those cases where the co-delinquent
is awarded lesser punishment by the
disciplinary authority even when the
charges of misconduct were identical or
the co-delinquent was foisted with more
1 All] Ram Pratap Singh Vs. State of U.P. & Ors.
337
serious charges. This would be on the
doctrine of equality when it is found that
the employee concerned and the codelinquent are equally placed. However,
there has to be a complete parity between
the two, not only in respect of nature of
charge but subsequent conduct as well
after the service of charge-sheet in the
two cases. If the co-delinquent accepts the
charges,
indicating
remorse
with
unqualified apology, lesser punishment to
him would be justifiable."
14. Put more pithily, this Court
would be compelled to interfere in the
quantum of punishment if the same is in
outrageous defiance of logic and moral
standards.
15. With due deference to what the
learned Single Judge came to hold in
Pancham Giri (supra), this Court finds
that the said judgment came to be cited
before a Division Bench of this Court in
Pawan Kumar Misra Vs. State of U.P. and
another (2014) 4 ADJ 612 when this
Court held as follows:-
"16. In the case of Pancham Giri vs.
State of U.P. and others 2010 Indlaw ALL
459 (supra), Hon'ble Single Judge while
deciding the writ petition has remanded
the matter to the authorities to take a fresh
decision on dismissal from service on
account of the fact that the delinquent
employee was at the verge of retirement.
A lenient view was taken by Hon'ble
Single Judge keeping the facts and
circumstances of the case, which does not
seem to be applicable to the present case.
17. In the case in hand, the appellantpetitioner had committed an offence of
bigamy after enjoying 11 years of
matrimonial life. Once the 1956 Rules
provides that second marriage by a
government servant during the lifetime of
first wife is an offence, and it amounts to
misconduct, then it is not open for the
court to take a different view than what
has been considered by the disciplinary
authority.
18. In the case of Union of India and
another vs. K.G. Soni 2006 Indlaw SC
421 (supra), relied upon by learned
counsel
for
the
appellant-petitioner,
Hon'ble Supreme Court in identical
situation held that the High Court
ordinarily should not interfere in such a
matter by exercising power conferred by
Article 226; rather it has to look into the
deficiency in the decision-making process
and not the decision. For convenience,
relevant paras 3, 8, 13 and 14 of the
aforesaid judgment are reproduced:
"3. Background facts in a nutshell are
as follows: Respondent was a Store
Attendant in the Bank Note Press, District
Dewas (M.P). A charge-sheet was issued
against him on the foundation that though
he had got married with one Parvathibai
in the year 1973, while filling up the
attestation form on 16.3.1974, he did not
show her name as his wife. It was further
alleged that he got married for the second
time in October, 1974 with one Ushabai.
On the basis of this non-disclosure,
which, authorities considered to be a
misconduct, a disciplinary proceeding
was initiated. It is to be noted that the
non-disclosure came to the notice of the
authorities when Parvathibai made a
complaint about the second marriage. The
enquiry was conducted under Central
Civil Services (Classification, Control and
Appeal) Rules, 1965 (in short the 'Rules').
The Enquiry Officer recorded findings in
favour
of
the
respondent.
The
Disciplinary Authority differed with the
findings of the Inquiry Officer and came
to hold that second marriage had in fact
338
 INDIAN LAW REPORTS ALLAHABAD SERIES
been performed and accordingly it issued
show cause notice to the respondent and
eventually
came
to
hold
that
the
respondent was guilty of misconduct and
imposed the punishment of removal by
order dated 2.4.1996.
8. The High Court was of the view
that ordinarily it would have remanded
the
matter
to
Tribunal
for
fresh
consideration on merits but it was of the
view that this is a fit case where the
matter should be remitted to the Appellate
Authority for reconsideration with regard
to the quantum of punishment. The only
basis for coming to the conclusion that the
complaint was made by the wife about the
alleged second marriage belatedly, and
this is not such a misconduct which
warrants compulsory retirement before his
superannuation.
13. In Union of India and Anr. v. G.
Ganayutham (1997 [7] SCC 463 1997
Indlaw SC 587), this Court summed up
the position relating to proportionality in
paragraphs 31 and 32, which read as
follows:
"The
current
position
of
proportionality in administrative law in
England and India can be summarized as
follows:
(1) To judge the validity of any
administrative
order
or
statutory
discretion, normally the Wednesbury test
is to be applied to find out if the decision
was illegal or suffered from procedural
improprieties or was one which no
sensible decision-maker could, on the
material before him and within the
framework of the law, have arrived at.
The
court
would
consider
whether
relevant matters had not been taken into
or whether irrelevant matters had been
taken into account or whether action was
not bona fide. The court would also
consider whether the decision absurd or
perverse. The court would however go
into the correctness of the made by the
administrator
amongst
the
various
alternatives open to. Nor could the court
substitute its decision to that of the
administrator. This is the Wednesbury
(1948 1 KB 223) test.
(2) The court would not interfere
with the administrator's decision unless it
was illegal or suffered from procedural
impropriety or was irrational \026 in the
sense that it was in outrageous defiance of
logic or moral standards. The possibility
of other tests, including proportionality
being brought into English administrative
law in future is not ruled out. These are
the CCSU (1985 AC 374) principles.
(3)(a) As per Bugdaycay (1987 AC
514), Brind (1991 (1) AC 696) and Smith
(1996 (1) All ER 257) as long as the
Convention is not incorporated into
English law, the English courts merely
exercise a secondary judgment to find out
if the decision-maker could have, on the
material before him, arrived at the
primary judgment in the manner he has
done.
(3)(b)
If
the
Convention
is
incorporated in England making available
the principle of proportionality, then the
English
courts
will
render
primary
judgment
on
the
validity
of
the
administrative action and find out if the
restriction is disproportionate or excessive
or is not based upon a fair balancing of
the fundamental freedom and the need for
the restriction thereupon.
(4)(a) The position in our country, in
administrative law, where no fundamental
freedoms as aforesaid are involved, is that
the courts/tribunals will only play a
secondary
role
while
the
primary
judgment as to reasonableness will remain
with the executive or administrative
authority. The secondary judgment of the
1 All] Ram Pratap Singh Vs. State of U.P. & Ors.
339
court is to be based on Wednesbury and
CCSU principles as stated by Lord
Greene and Lord Diplock respectively to
find if the executive or administrative
authority has reasonably arrived at his
decision as the primary authority.
(4)(b) Whether in the case of
administrative
or
executive
action
affecting
fundamental
freedoms,
the
courts in our country will apply the
principle of "proportionality" and assume
a primary role, is left open, to be decided
in an appropriate case where such action
is
alleged
to
offend
fundamental
freedoms. It will be then necessary to
decide whether the courts will have a
primary role only if the freedoms under
Articles 19, 21 etc. are involved and not
for Art. 14."
14. The common thread running
through in all these decisions is that the
Court should not interfere with the
administrator's decision unless it was
illogical or suffers from procedural
impropriety or was shocking to the
conscience of the Court, in the sense that
it was in defiance of logic or moral
standards. In view of what has been stated
in the Wednesbury's case (supra) the
Court would not go into the correctness of
the choice made by the administrator open
to him and the Court should not substitute
its decision to that of the administrator.
The scope of judicial review is limited to
the deficiency in decisionmaking process
and not the decision."
19. Keeping the principle emerging
from Union of India and another vs. K.G.
Soni 2006 Indlaw SC 421 (supra), there
appears to be no reason to interfere with
the order passed by Hon'ble Single Judge
and the disciplinary authority, as held by
their Lordships of Hon'ble Supreme Court
that the courts should not interfere with
the administrator's decision unless it was
illogical or suffers from procedural
impropriety or was shocking to the
conscience of the court. The department
moved ahead to charge the appellantpetitioner in pursuance of complaint
submitted by his own first wife and
factum of remarriage has not been denied
by the appellant-petitioner. Accordingly,
the appellant-petitioner has been punished
in
pursuance
to
1956
Rules
(supra).superannuation."
16. Considering a matter arising out
of the same U.P. Government Servants
Conduct Rules, 1956 this is what the
Apex Court held recently in Khursheed
Ahmad Khan Vs. State of U.P. & others
Civil Appeal No. 1662 of 2015 decided
on 09.02.2015:-
"9.
As
regard
the
charge
of
misconduct in question, it is patent that
there is no material on record to show that
the appellant divorced his first wife before
the second marriage or he informed the
Government about contracting the second
marriage. In absence thereof the second
marriage is a misconduct under the
Conduct Rules. The defence of the
appellant that his first marriage had come
to an end has been disbelieved by the
disciplinary authority and the High Court.
Learned counsel for the State has pointed
out that not only the appellant admitted
that his first marriage was continuing
when he performed second marriage, first
wife of the appellant herself appeared as a
witness during the inquiry proceedings
and stated that the first marriage was
never dissolved. On that basis, the High
Court was justified in holding that the
finding of proved misconduct did not call
for any interference. Learned counsel for
the State also submits that the validity of
the impugned Conduct Rule is not open to
340
 INDIAN LAW REPORTS ALLAHABAD SERIES
question on the ground that it violated
Article 25 of the Constitution in view of
the law laid down by this court in Sarla
Mudgal v. Union of India[1]. He further
submitted that the High Court was
justified in holding that the punishment of
removal could not be held to be
shockingly disproportionate to the charge
and did not call for any interference.
10. We have given due consideration
to the rival submissions. We are of the
view that no interference is called for by
this Court in the matter." .
17. Bearing in mind the above, this
Court finds itself unable to accept the
submissions advanced by the learned
counsel for the Petitioner. The bane of
child marriage has been sought to be
removed by our country for centuries.
Legislation to end this cursed custom was
enacted as far back as 1929 in the form of
the Child Marriage Restraint Act, 1929
and
subsequently
replaced
by
the
Prohibition of Child Marriage Act, 2006.
The custom not only amounts to child
abuse, it deprives the girl child of basic
human rights. A member of the police
force is charged with the duty of
maintaining the law, upholding the
standards
of
a
civil
society.
The
punishment, viewed in light of the above
facts, does not shock the conscience of
this Court warranting substitution of the
choice made by the administrator.
18. The writ petition is accordingly
dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.01.2015
BEFORE
THE HON'BLE YASHWANT VARMA, J.
Writ A No. 28679 of 2009
Sri Krishna Prasad Yadav & Ors. .Petitioners
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioners:
Sri Ashok Khare, Sri Siddharth Khare
Counsel for the Respondents:
C.S.C., Sri Ashok Kumar Shukla, Sri K.K.M
Tripathi
U.P. State Aided Educational Institution
Employees Contributory Provident FundInsurance-Pension
Rules,
1964-Rule
4(b) Rule 16-claim of Post Retiral
benefit-working as teacher in Primary
section
attached
to
intermediate
institution-denial
in
grab
of
G.O.
20.01.2004-held primary section being
integral part of Institution-taken grant in
aid 01.10.89-in view of Rule 4(b)-
primary section being integral part of
intermediate-entitled for pension-G.O.
Relied
by
state
already
quasheddirection to take into account total
length of service for qualifying period for
pension-issued.
Held: Para-8
It is further relevant to note here that
the Primary Section was an integral part
of the Institution and the teachers
attached thereto could not have been
discriminated
for
the
purposes
of
payment of pension merely because they
came
on
to
grant-in-aid
list
w.e.f.
1.10.1989. In the opinion of the Court,
there is no provision under the Rules
1964 which curtails the computation of
length of qualifying service to the time
when the Primary Sections became or
came under the grant-in-aid list.
Case Law discussed:
W.P. No. 17819 of 2007; .W.P. No. 17033 of
2012; W.P. No. 75746 of 2006.
(Delivered by Hon'ble Yashwant Varma, J.)