# Mukesh Chaturvedi v. State of U.P. and others

- **Citation:** (2010) 1 ILRA 288
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-12-29
- **Case number:** Civil Misc. Writ Petition No. 21446 of 2007
- **Bench:** Amreshwar Pratap Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mukesh-chaturvedi-v-state-of-u-p-and-others-41600
- **Pages:** 3

## Headnote

Constitution of India Art. 226-stoppage
of one increment with permanent effectthe disciplinary authority bound to give
show cause notice-in case of differ the
opinion from enquiring report-orderheld-not
sustainable-quashed-with
liberty to pass fresh order after show
cause notice.

Held: Para 3

A perusal of the order does not indicate
that the petitioner was given any show
cause or opportunity prior to the passing
of the order dated 16.1.2007. It is also
not evident from the impugned order as
to what was the reason for disagreeing
with the earlier inquiry report. In view of
the aforesaid clear position and no
counter affidavit having been filed the
impugned order dated 16.1.2007 is
unsustainable.
Case law discussed:
1998 (8) SCC, Page 1.

## Text

288 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

unfair practice adopted by the State. The
Secretary, Basic Education, under the
impugned order has recorded that the
Government Order dated 29.12.2008
confines the test for the candidates who
had completed two years training in
pursuance of the selection held in the year
2002, which has been cancelled by the
State Government itself in 2005. It has
been recorded that since the petitioner had
not undergone the training of two years in
pursuance
to
the
earlier
admissions/selections, they cannot be
permitted to appear in the test now held
under the Government Order dated
29.12.2008. The order of the Secretary is
under challenge in this petition.

9. I am of the prima facie opinion
that the order of the Secretary is based on
complete non application of mind to the
terms and conditions of the Government
Order dated 20.10.2005, which has been
confirmed by the Hon'ble Single Judge as
well as by the Division Bench of this
Court.

10. As already noticed above, a
fresh entrance test from amongst all the
candidates who had undertaken the earlier
examination held in April, 2002 was
necessary. Only relaxation from training
was granted to such candidates who
succeed in the entrance examination to be
held under Government Order dated
20.10.2005 and who had completed two
years training. The Division Bench has
specifically held that if such candidates
are successful in subsequent examination
to be held under Government Order dated
20.10.2005, it will be too harsh to ask
such candidates to undergo the training
again for the same period of two years.
The Government Order dated 29.12.2008
has been made a tool by the State
Government to deny consideration for
admission to B.T.C. Course 2001 to the
candidates like the petitioner, who are
victim of illegalities earlier committed by
the State itself. The Government Order
dated
29.12.2008
over
reaches
the
judgment of the Division Bench referred
to above and is an attempt to perpetuate
illegalities committed by the State while
granting admissions on the basis of
entrance test held in the year 2002.

11.

Let
Secretary,
Secondary
Education, file is personal affidavit by the
next date fixed for explaining the situation
and to show cause why this Court may not
proceed to impose exceptional cost for
unnecessary litigation being generated.
He may also explain that once the
Government Order dated 20.10.2005 was
affirmed by this Court in the year 2005
and directions were issued to act in
accordance there to, how could the
Government Order dated 29.12.2008 be
issued for diluting the directions issued by
the Writ Court and as to why proceedings
for contempt of the Court may not be
initiated against him.

List on 12th April, 2010.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.03.2010

BEFORE
THE HON'BLE AMRESHWAR PRATAP
SAHI, J.

Civil Misc. Writ Petition No. 21446 of 2007

Mohd. Naim

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

Counsel for the Petitioner:
1 All] Mukesh Chaturvedi V. State of U.P. and others

289
Sri V.P. Shukla

Counsel for the Respondents:
Sri Pramod Bhardwaj
C.S.C.

Constitution of India Art. 226-stoppage
of one increment with permanent effectthe disciplinary authority bound to give
show cause notice-in case of differ the
opinion from enquiring report-orderheld-not
sustainable-quashed-with
liberty to pass fresh order after show
cause notice.

Held: Para 3

A perusal of the order does not indicate
that the petitioner was given any show
cause or opportunity prior to the passing
of the order dated 16.1.2007. It is also
not evident from the impugned order as
to what was the reason for disagreeing
with the earlier inquiry report. In view of
the aforesaid clear position and no
counter affidavit having been filed the
impugned order dated 16.1.2007 is
unsustainable.
Case law discussed:
1998 (8) SCC, Page 1.

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

1. Heard learned counsel for the
petitioner.

2. The petitioner has challenged the
order dated 16th January, 2007 passed by
the District Basic Education Officer,
Saharanpur whereby punishment has been
imposed on the petitioner by stopping one
increment on permanent basis with a
further warning to the petitioner on
account of the charges levelled against
him.

The writ petition was preferred and
entertained on 1st May, 2007 and the
respondents had accepted notice and were
granted time to file counter affidavit.
None of the respondents including the
Basic Education Shiksha Parishad has
filed any counter affidavit till date. A
notice in writing has been served on
learned counsel for the Basic Shiksha
Parishad about this case being taken up
today.

In spite of the notice none appears on
behalf of the Parishad.

I have heard learned Standing
Counsel for the respondents who contends
that the order has been passed after a full
scale inquiry.

I have perused the impugned order as
also the averments contained in the writ
petition which have not been controverted
by filing any counter affidavit. The
petitioner contends that the inquiry had
earlier been instituted and satisfied with
the
reply
of
the
petitioner
a
recommendation was made for dropping
the inquiry. A copy of the same dated 15th
April, 2005 is Annexure-3 to the writ
petition. It appears that the disciplinary
authority did not agree with the said
inquiry report and ordered a fresh inquiry
which was conducted. On such fresh
recommendation by the second Inquiry
Officer, the impugned order dated 16th
January, 2007 has been passed.

3. A perusal of the order does not
indicate that the petitioner was given any
show cause or opportunity prior to the
passing of the order dated 16.1.2007. It is
also not evident from the impugned order
as to what was the reason for disagreeing
with the earlier inquiry report. In view of
the aforesaid clear position and no counter
290 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

affidavit having been filed the impugned
order dated 16.1.2007 is unsustainable.

Learned Standing Counsel contends
that
the
petitioner
has
filed
a
representation and he had a right to file an
appeal before the Secretary Basic Shiksha
Parishad. It is correct that an alternative
remedy is always available in such a
matter but in view of the law laid down in
the case of Whirlpool Corporation Vs.
Registrar of Trade Marks, Mumbai &
others, reported in 1998 (8) SCC, Page 1,
the aforesaid argument does not hold
water inasmuch as the impugned order is
absolutely vitiated as pointed out herein
above. In view of this, the order dated
16.1.2007
is
quashed.
The
Basic
Education Officer shall give a show cause
to the petitioner and, thereafter proceed to
pass an appropriate order in accordance
with law within three months from the
date of production of a certified copy of
this order before him.

The writ petition is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.03.2010

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 16995 of 1992

Ram Singh Katiyar

...Petitioner
Versus
Director of Education, U.P., Allahabad
and others

 ...Respondents

Counsel for the Petitioner:
Sri J.N. Singh
Sri A.K. Saxena

Counsel for the Respondents:
C.S.C.

U.P.
High
School
and
Intermediate
Colleges (Teachers and other Employees)
Payment of Salary Act 1971-Petitioner
offered appointment on Post of L.T.
grade
teacher
on
8.9.1991-while
substantive
vacancy
caused
due
to
retirement
of
earlier
substantive
appointee
on
30.06.1989
and
commission
failed
to
recommend
suitable candidate-appointment during
an imposed by State Government dated
29.06.1991-upheld
by
Hon'ble
High
Court-held-even sort term vacancy can
not be filed up without publication in
two newspaper in view of Radha Raijada
Case-not entitled for salary.

Held: Para 6

Learned
counsel
for
the
petitioner
referred to an interim order of the
Division Bench of this Court in Special
Appeal No.1237 of 2009 and claims that
in similar circumstance an interim order
has been granted and therefore, the
services of the petitioner may not be
interfered with. On examination of the
interim order of this Court it is found
that none of the issues referred above
have been considered, even otherwise it
may be recorded that the judgment of
this Court in the case of Ashika Prasad
Shukla Vs. District Inspector of Schools,
Allahabad
and
another
(1998)
3
U.P.L.B.E.C
1722
deals
with
adhoc
appointment against short term vacancy
and not against substantive vacancies. It
may be clarified that so far as short term
vacancies are concerned, appointment
was regulated by the Second Removal
Order of 1981 which did not require any
publication of advertisement. Therefore,
the Full Bench in the case of "Radha
Raizada
&
Ors.
Vs.
Committee
of
Management & Ors" reported in (1994) 3
UPLBEC 1551 laid down that even in
respect
of
short
term
vacancies,
advertisement in two news papers is
must.
However,
with
regards
to
substantive vacancies the same were to
be filled as per Ist Removal of Difficulties