# Kumar Tiwari v. Executive Engineer

- **Citation:** (2002) 2 ILRA 644
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002
- **Case number:** Special Appeal No.1005 of 1997
- **Bench:** S.K. Sen, C.J. Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kumar-tiwari-v-executive-engineer-39904
- **Pages:** 5

## Headnote

(A) Constitution of India, Article 226
Service
Law-
Cancellation
of
appointment order- appellant appointed
as Part time tube well operator pursuant
to demicile certificate of a particular
village subsequently it was found that
the certificate is not correct-show cause
notice issued- in reply the appellant
could not prove to be the resident of that
particular
village-
cancellation
of
appointment held-proper-writ court can
not act as Appellate court.

Held- Para 7

The petitioner was given opportunity to
show cause and the respondents after
the show case notice were satisfied that
petitioner is not resident of village Tarna
Tarni. In view of the above, it was open
to the respondents to arrive at a finding
with
regard
to
residence
of
the
petitioner.
The
scope
of
challenge
regarding residence of the petitioner is
very limited. This Court under Article 226
of the Constitution cannot re-asess the
evidence or to substitute its finding with
that of the finding of the authorities.

(B) Constitution of India, Article 226-
opportunity of hearing- appointment
letter issued on the basis of certificate
submitted by the employee regarding
permanent resident of village Tarn Tarni-
after considering the reply submitted
pursuant
to
show
cause
notice-
appointment cancelled whether before
passing the cancellation of appointment
opportunity of hearing is must ? Held-
'No'.

Held- Para 6

The disciplinary enquiry is required to be
held when a person is punished on
account
of
any
misconduct.
The
respondents having not awarded any
kind of punishment to the appellant and
only having cancelled the appointment of
the petitioner, there was no occasion for
holding disciplinary enquiry.
.
It is true that before passing the order of
cancellation of appointments in the
present case, the petitioner was entitled
for an opportunity. The show cause
notice dated 14the February, 1991 was
given to the petitioner to which reply has
also been filed by the petitioner. Hence
not holding of enquiry in the present
case does not vitiate the order cancelling
the appointment. The second submission
of counsel for the appellant thus cannot
be accepted.
Case law discussed:
2002 (2) ESC 247

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
644
23. We do not find any good ground
in this special appeal to interfere with the
order of Learned Single Judge or to grant
any relief to the petitioner. The special
appeal fails and is dismissed accordingly.
No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19. 08.2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE ASHOK BHUSHAN, J.

Special Appeal No.1005 of 1997

Anil Kumar Tiwari

...Appellant
Versus
Executive Engineer, Tube Well Division,
Allahabad and others
 ...Respondents

Counsel for the Petitioner:
Sri D.K. Mishra

Counsel for the Respondent:
Sri Ran Vijai Singh, S.C.

(A) Constitution of India, Article 226
Service
Law-
Cancellation
of
appointment order- appellant appointed
as Part time tube well operator pursuant
to demicile certificate of a particular
village subsequently it was found that
the certificate is not correct-show cause
notice issued- in reply the appellant
could not prove to be the resident of that
particular
village-
cancellation
of
appointment held-proper-writ court can
not act as Appellate court.

Held- Para 7

The petitioner was given opportunity to
show cause and the respondents after
the show case notice were satisfied that
petitioner is not resident of village Tarna
Tarni. In view of the above, it was open
to the respondents to arrive at a finding
with
regard
to
residence
of
the
petitioner.
The
scope
of
challenge
regarding residence of the petitioner is
very limited. This Court under Article 226
of the Constitution cannot re-asess the
evidence or to substitute its finding with
that of the finding of the authorities.

(B) Constitution of India, Article 226-
opportunity of hearing- appointment
letter issued on the basis of certificate
submitted by the employee regarding
permanent resident of village Tarn Tarni-
after considering the reply submitted
pursuant
to
show
cause
notice-
appointment cancelled whether before
passing the cancellation of appointment
opportunity of hearing is must ? Held-
'No'.

Held- Para 6

The disciplinary enquiry is required to be
held when a person is punished on
account
of
any
misconduct.
The
respondents having not awarded any
kind of punishment to the appellant and
only having cancelled the appointment of
the petitioner, there was no occasion for
holding disciplinary enquiry.
.
It is true that before passing the order of
cancellation of appointments in the
present case, the petitioner was entitled
for an opportunity. The show cause
notice dated 14the February, 1991 was
given to the petitioner to which reply has
also been filed by the petitioner. Hence
not holding of enquiry in the present
case does not vitiate the order cancelling
the appointment. The second submission
of counsel for the appellant thus cannot
be accepted.
Case law discussed:
2002 (2) ESC 247

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Sri D.K. Misra, counsel for
the appellant and Sri Ran Vijai Singh,
Standing counsel appearing for the
respondents.
http://www.allahabadhighcourt.nic.in
2 All] Anil Kumar Tiwari V.Executive Engineer, Tube Well Division, Allahabad & others
645
2. This special appeal has been filed
challenging
the
judgement
dated
19.11.1997 of learned Single Judge in
writ petition no. 37249 of 1991 (Anil
Kumar Tiwari Vs. Executive Engineer
and another). By the aforesaid judgement
learned Single Judge dismissed the writ
petition filed by the appellant.

3. Brief facts giving rise to this
special
appeal
are,
the
appellant
(hereinafter referred to as petitioner) filed
the writ petition challenging the order
dated7th December, 1991 by which
appointment of the petitioner as Part time
tube
well
operator
was
cancelled.
Petitioner's case in the writ petition was
that petitioner is resident of village Taran
Tarni. He applied for appointment as Part
time tube well operator. According to
relevant orders governing the appointment
of part time tube well operator, it was
required that tube well operator must
belong to village where tube well is
situate and if command area of tube well
is more than one village then the person
of
nearest
village
will
be
given
preference.
The
petitioner
claiming
himself to be resident of village Taran
Tarni applied for being appointed as part
time tube well operator. The petitioner
filed a domicile certificate and was
appointed as part time tube well operator
in the year 1987. The Sub Divisional
Officer, Chail sent a letter dated 8
September, 1988 that petitioner is not
permanent resident of village Taran Tarni.
A show cause notice dated 14 February,
1991 was issued to the petitioner by
Executive Engineer stating that petitioner
was appointed on basis of his application
in which he claimed himself to be resident
of village Taran Tarni. It was stated that
petitioner
gave
wrong
information
regarding his residence and obtained
appointment order. The petitioner was
asked to show cause within fifteen days
failing which necessary action be taken
against the petitioner. The petitioner
submitted a reply denying the allegation
and claimed that he is resident of village
Taran
Tarni.
By
order
dated
7th
December 1991 his appointment as part
time tube well operator was cancelled on
the ground that he is not permanent
resident
of
village
Taran
Tarni.
Consequently direction was issued to
relieve him from his duties as part time
tube well operator. The petitioner filed
writ petition against the said order dated
7th December, 1991 in which counter
affidavit was filed on behalf of the
respondents by Assistant Engineer. One
Rajendra
Singh
also
got
himself
impleaded as respondent no. 3 in the writ
petition. Learned Single Judge vide his
judgement dated 19th November, 1997
has dismissed the writ petition of the
petitioner. Learned Single Judge rejected
both the submissions of counsel for the
petitioner. Learned Single Judge has
stated that the order was passed after
giving opportunity to the petitioner and
the claim of the petitioner regarding
violation of Article 16 of the Constitution
of India is unfounded. Against the said
judgement dated 19th November, 1997,
the present special appeal has been filed
by the petitioner.

4. The counsel for the petitioner
raised three submissions challenging the
said order. The counsel for the petitioner
submitted that requirement of residence in
the particular village for purposes of
appointment of part time tube well
operator is violative of Article 16 of the
Constitution. He has submitted that no
restriction can be made for appointment
on the basis of residence. The second
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
646
submission of counsel for the petitioner is
that no enquiry was held before passing
the termination order. He submitted that
neither any date was fixed in the enquiry
nor any enquiry was held. The counsel for
the petitioner has placed reliance on a
Division Bench judgement of this court in
2002 (2) ESC 247, Safat Ullah vs.
Commissioner,
Varanasi
Division,
Varanasi
and
others.
The
third
submission of counsel for the petitioner is
that petitioner has filed several materials
before the authorities which have not been
considered while taking the decision.

5. We have heard counsel for the
parties and perused the record. The first
submission of counsel for the petitioner
that no restriction on the basis of resident
of a particular village can be imposed in
condition of appointment has to be
considered. Along with the appeal, the
petitioner has brought on the record the
executive
instructions
providing
for
procedure of appointment of part time
tube well operator. Annexure- 10 to the
affidavit discloses that it is one of the
condition for appointment of a part time
tube well operator on basis of said
condition claiming himself to be resident
of village Taran Tarni where the tube well
is claimed to be situated. The petitioner
was given appointment accepting his
claim that he is resident of village Taran
Tarni. The petitioner having taken benefit
of
aforesaid
condition
is
seeking
employment, he is now estopped from
challenging the aforesaid condition which
was attached to the appointment as part
time tube well operator. From the other
conditions which have been mentioned in
Annexure 10 to the affidavit, it appears
that the period of working of a part time
tube well operator is only from 9.30 to
12.00 which is clear from condition no. 6.
It further provides that after the aforesaid
hour, the person is entitled to do his own
work but has to be available in the
command area. Looking to the nature of
duties, the condition requiring the part
time tube well operator to be resident of
same village cannot be said to be
unreasonable. In any view of the matter
since petitioner himself took benefit of the
said condition, it is not open for him to
challenge the said condition. Learned
Single Judge has dealt with this argument
and
has
rightly
rejected
the
said
contention. We do not find any error in
the findings of the learned Single Judge
rejecting the above contention of the
petitioner.

6. The second submission of counsel
for the petitioner is that no enquiry was
held before passing the impugned order.
From the order impugned, it is clear that
the by order cancelling the appointment of
the petitioner on the ground that he is not
resident of village Tarna Tarni, the
respondents
have
not
awarded
any
punishment on any misconduct of the
petitioner. The disciplinary enquiry is
required to be held when a person is
punished on account of any misconduct.
The respondents having not awarded any
kind of punishment to the appellant and
only having cancelled the appointment of
the petitioner, there was no occasion for
holding disciplinary enquiry. It is true that
if the respondents intended to punish the
petitioner
for
misconduct,
it
was
obligatory for the respondents to hold
disciplinary enquiry. However, since the
respondents
have
not
punished
the
petitioner, it was not obligatory for them
to hold an enquiry. The decision of
Division Bench of this Court in Safat
Ullah's case (supra) is not attracted in the
facts of the present case. In the said case
http://www.allahabadhighcourt.nic.in
2 All] Anil Kumar Tiwari V.Executive Engineer, Tube Well Division, Allahabad & others
647
after disciplinary enquiry, the petitioner of
that case was dismissed from service after
the enquiry report by Enquiry Officer. His
appeal too was dismissed. In view of the
aforesaid facts, the Division Bench of this
Court held that holding of enquiry is
necessary. The aforesaid judgement being
a judgement pertaining to case of
dismissal after the enquiry is not attracted
in the present case. It is true that before
passing the order of cancellation of
appointment in the present case, the
petitioner was entitled for an opportunity.
The show cause notice dated 14 February,
1991 was given to the petitioner to which
reply has also been filed by the petitioner.
Hence not holding of enquiry in the
present case does not vitiate the order
cancelling the appointment. The second
submission of counsel for the appellant
thus cannot be accepted.

7. The last submission of counsel for
the petitioner that petitioner submitted
several documents which have not been
considered by the respondents has to be
looked into. From the show cause notice
given to the petitioner, it is clear that it
was claimed by the respondents that
petitioner is not resident of village in
which he has been appointed as part time
tube well operator. The residence in the
village being condition precedent for
grant of appointment, the said issue went
to very eligibility of the petitioner for
appointment. The petitioner was, thus
made aware of the grounds on which the
respondents were proceeding to take
action. This is not a case in which
petitioner has been taken by surprise or
his appointment has been cancelled on a
ground which was never disclosed to him.
The petitioner was given appointment on
the basis of domicile certificate given by
the revenue authorities in his favour
which was filed by him. The revenue
authorities themselves subsequently wrote
to the department that the certificate of
domicile given to the petitioner is not
correct as is apparent from the averments
made in the counter affidavit. After the
aforesaid
letter
from
the
revenue
authorities,
the
department
initiated
proceeding against the petitioner. The
respondents
after
making
necessary
enquiry were satisfied that certificate of
domicile filed by the petitioner was not
correct.
The
petitioner
was
given
opportunity to show cause and the
respondents after the show cause notice
were satisfied that petitioner is not
resident of village Tarna Tarni. In view of
the above, it was open to the respondents
to arrive at a finding with regard to
residence of the petitioner. The scope of
challenge regarding residence of the
petitioner is very limited. This court under
Article 226 of the Constitution cannot re
assess the evidence or to substitute its
finding with that of the finding of the
authorities. It cannot be said in the present
case that there was no material at all to
come to the conclusion that petitioner is
not resident of village Tarna Tarni. The
report of revenue officer was with them
and one of the letters of the District
Magistrate was also referred to in the
show cause notice. In this appeal also we
have examined the materials which have
been brought on the record by the
petitioner claiming him to be resident of
village Taran Tarni. The counsel for the
petitioner during hearing has referred to
the voter list copy of which has been
annexed as Annexure 8 to the affidavit.
The aforesaid voter list pertains to the
year 1993. The voter list of 1993 may not
be relevant while deciding the question as
to whether in the year 1987, the petitioner
was resident of village in question or not.
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
648
8. Learned Counsel for the petitioner
has also submitted that the letter of
District Magistrate dated 24 October,
1991 which is referred to in the impugned
order was never supplied to the
petitioner.It is to be noted that by show
cause notice, the petitioner was informed
that there is a challenge to his claim of
resident of village Tarna Tarni and one
letter of District Magistrate was referred.
The burden to prove that petitioner is
resident of village Tarna Tarni was clearly
on him since he sought employment on
basis of said fact. When the show cause
notice was issued to the petitioner to
prove that he is resident of village Taran
Tarni, unless the petitioner satisfied the
respondents by any cogent proof that he is
resident of village Taran Tarni, no error
can be said to have been committed by the
respondents
in
cancelling
his
appointment. It is true that it would have
been better if the letter of the Collector
dated 24 October, 1991 was informed to
the petitioner but in view of the facts of
the present case and the issue which was
raised in the writ petition that petitioner is
resident of a particular village we are not
inclined to interfere with the order
impugned in the writ petition. The learned
Single Judge has also considered the
pleadings of the parties and the materials
brought before the Court and has rightly
dismissed the writ petition.

9. We have also looked into the
materials brought in the appeal in support
of claim of the petitioner that he is
resident of village Taran Tarni and are
satisfied that petitioner has failed to prove
the said fact by any cogent evidence. With
regard to claim of petitioner on the basis
of voter list of 1988-89, it is to be noted
the name of the petitioner in the said voter
list was refuted and reliance was placed
on the report dated 24.5.1990 of Gram
Pradhan as well as report of the Assistant
Election Officer which were filed along
with the counter affidavit of respondent
no. 3 in the writ petition.

10. In view of the aforesaid facts,
this Court under Article 226 of the
Constitution of India rightly refused to
adjudicate the disputed questions of fact.
In view of the above, no error can be said
to have been committed by learned Single
Judge in dismissing the writ petition.
None of the submissions raised by the
counsel for the petitioner has any merit.
No good grounds have been made out to
interfere with the judgement of learned
Single Judge. There is no merit in the
special appeal.

The special appeal fails and is
dismissed. No order as to the cost.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.08.2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE ASHOK BHUSHAN, J.

Special Appeal No. 45 of 2001

Ram Laxman Prasad

...Petitioner
Versus
Director Bal Vikas Evam Pushtahar, U.P.,
Lucknow and others
 ...Respondents

Counsel for the Petitioner:
Sri Ram Laxman Prasad (in person)

Counsel for the Respondents:
Sri Sabhajeet Yadav, S.C.

Constitution
of
India,
Article
226Dismissal order- appellant's conviction-
stayed by Hon'ble Supreme Court against