# Padam Kumar Agarwal v. The Inspector General(Registration) and Anr

- **Citation:** (2013) 2 ILRA 692
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-04-02
- **Bench:** Pradeep Kant Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/padam-kumar-agarwal-v-the-inspector-general-registration-and-anr-42556
- **Pages:** 5

## Headnote

Constitution Of India, Art. 226- Termination
of compassionate appointment-without
2 All] Padam Kumar Agarwal Vs. The Inspector general (Registration) and Anr.
693
opportunity of hearing-on ground his elder
brother
already
got
appointed
on
compassionate ground-stand falsified from
RTI information-who was appointed on
independent
capacity
and
not
on
compassionate ground-other ground of
termination-petition
was
dismissed
in
default-for negligence of counsel-ligent
should not put to suffer-even then petition
already restored-termination order being in
utter violation of principle of Natural
Justice-unsustainable quashed-direction to
decide as fresh after giving opportunity of
hearing to petitioner-stay to continue after
15 days from the date of decision.

Held: Para-14
Bearing in the mind the aforesaid law, in my
view petitioner shall not be made to suffer
on account of dismissal of his writ petition
for non prosecution. If, petitioner makes
representation for payment of salary for the
period when he actually worked, the
respondent no.2 shall pass a separate order
in respect of the said representation having
regard to the fact that if the petitioner has
worked during the said period his salary
shall be paid to him.

Case Law discussed:
AIR 1955 SC 425; (1967) 2 SCR 625; AIR 1968
SC 292; (1970) SCC 405; (1978) 1 SCC 248;
(1980) 4 SCC 379; (2011) 8 SCC 380; (1981) 2
SCC 788

## Text

692 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
for the SAC to afford fresh opportunity of
hearing to the petitioner, inasmuch as his claim
has been considered earlier and records were
examined. The Scrutiny Committee Report is
only for verification of the case pleaded by the
institution got inspection done by the Expert
Committee, no further opportunity of hearing
was required to be afforded.

6. I have considered the submissions
made by the learned counsel for the
parties and have examined the records of
the present writ petition.

7. At the very outset, this Court may
record that the manner of rejection of the
applications of the institutions as in
practice with the AICTE by merely
referring to the deficiencies as noticed in
various reports is highly unsatisfactory.
The case of the institutions seeking such
recognition qua that deficiencies having
been removed, are non-existent, must be
considered under an order supported by
reasons for not accepting their case.

8. The Apex Court in its judgment in
the case of State of Uttranchal vs. Sunil
Kumar Negi reported in 2008 (4) ALJ,
226 (Pr. 7 and 8) as well as in the case of
Raj Kishor Jha vs. State of Bihar &
Ors. (2003) 11 SCC 519 has held that
reasons are heart beat of any conclusion
and without the same it is lifeless.
reported in

9. Serious civil consequences follow
because of rejection of the application for
recognition of institutions, as they made huge
investments, the minimum required is that
they are informed of the specific reason for
such rejection. The SAC must examine the
contention raised on behalf of the institutions
while deciding the appeal and must record
reasons while rejecting the appeal.

10. It is the case of the petitioner
that the report submitted by the Expert
Committee after their visit on 22nd
March, 2013 was factually incorrect. This
Court finds that the report of the Expert
Committee dated 22nd March, 2013 has
been relied upon without affording
opportunity of hearing to the petitioner to
meet the deficiencies noticed therein. The
order impugned dated 5th April, 2013
therefore, cannot be legally sustained. It is
hereby quashed.

11. Let the SAC decide the appeal of
the petitioner by means of a reasoned
speaking
order,
after
affording
opportunity of hearing to the petitioner
preferably within two weeks from the date
a certified copy of this order is filed
before the authority concerned.

12. The present writ petition is allowed
subject to the observations made above.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.04.2013

BEFORE
THE HON'BLE PRADEEP KANT SINGH
BAGHEL, J.
Civil Misc. Writ Petition No. 22916 Of 2013

Padam Kumar Agarwal
 ...Petitioner
Versus
The Inspector General(Registration) and
Anr.
 ...Respondents

Counsel for the Petitioner:
Sri V.K. Srivastava, Sri K.M. Mishra
Sri V.K. Agarwal, Sri Vijendra Singh

Counsel for the Respondents:
C.S.C.

Constitution Of India, Art. 226- Termination
of compassionate appointment-without
2 All] Padam Kumar Agarwal Vs. The Inspector general (Registration) and Anr.
693
opportunity of hearing-on ground his elder
brother
already
got
appointed
on
compassionate ground-stand falsified from
RTI information-who was appointed on
independent
capacity
and
not
on
compassionate ground-other ground of
termination-petition
was
dismissed
in
default-for negligence of counsel-ligent
should not put to suffer-even then petition
already restored-termination order being in
utter violation of principle of Natural
Justice-unsustainable quashed-direction to
decide as fresh after giving opportunity of
hearing to petitioner-stay to continue after
15 days from the date of decision.

Held: Para-14
Bearing in the mind the aforesaid law, in my
view petitioner shall not be made to suffer
on account of dismissal of his writ petition
for non prosecution. If, petitioner makes
representation for payment of salary for the
period when he actually worked, the
respondent no.2 shall pass a separate order
in respect of the said representation having
regard to the fact that if the petitioner has
worked during the said period his salary
shall be paid to him.

Case Law discussed:
AIR 1955 SC 425; (1967) 2 SCR 625; AIR 1968
SC 292; (1970) SCC 405; (1978) 1 SCC 248;
(1980) 4 SCC 379; (2011) 8 SCC 380; (1981) 2
SCC 788

(Delivered by Hon'ble Pradeep Kant
Singh Baghel, J.)

1. The petitioner is working as a Clerk in
the office of the District Registrar, Firozabad.
He is aggrieved by the order of his termination
dated 16.4.1992 passed by the Inspector
General of Registration, U.P.Allahabad, which
has been communicated to him on 23.4.1992.
He is seeking writ of certiorari to quash the
aforesaid orders.

2. A brief reference to the factual aspect
would suffice.

3. The petitioner's father Suresh
Chandra Gupta was a Registration Clerk in
the office of the respondent no.2. He
unfortunately died in the year 1982. The
petitioner, at the time of death of his father,
was minor. After attaining the age of
majority he moved an application for
appointment on compassionate ground. The
respondent no.1 Inspector General of
Registration, U.P. Allahabad appointed him
on the post of clerk on compassionate ground
on 18.6.1990. A copy of the appointment
order is Annexure -1 to the writ petition. It is
stated that the petitioner joined his services
and he was working, his salary was also paid
upto March, 1991, but his salary was stopped
without disclosing any reason. He made
representation for his payment of salary and to
his utter shock he was served a copy of
termination dated 23.4.1992. From the
communication dated 23.4.1992 it is evident
that the said order was passed in compliance of
the order dated 16.4.1992 which is on the
record as Annexure-1 to the counter affidavit.
In the termination order dated 16.4.1992 it is
mentioned that petitioner has obtained his
appointment by fraud as his elder brother
Pawan Kumar Agarwal has already been
appointed on the compassionate ground and for
the said reasons his appointment was cancelled.

4. A counter affidavit has been filed on
behalf of the respondents. The stand taken in
the counter affidavit is the same which has
been mentioned in the impugned order dated
16.4.1992 viz the petitioner's elder brother
was appointed on compassionate ground
after the death of the petitioner's father and
concealing this fact the petitioner has secured
appointment and for the said reasons his
appointment is cancelled.

5. I have heard Sri K.M.Mishra
learned counsel for the petitioner and
learned Standing Counsel.
694 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

6. Learned counsel for the petitioner
submits that the order of termination has
been
passed
in
utter
disregard
to
principles of natural justice and no
opportunity or notice was given to the
petitioner and on this ground alone the
order is vitiated. He further urged that the
allegations in the impugned order that the
petitioner
secured
appointment
by
misrepresentation is incorrect as the
petitioner's brother was not appointed on
compassionate ground. Learned counsel
for the petitioner has drawn the attention
of the Court to the document which he has
brought on the record as Annexure-SA-1
to the Supplementary Affidavit. The said
document has been obtained by him under
the provisions of the Right to Information
Act. The said document issued from the
office of the District Magistrate, Etah
reveals that the appointment of the
petitioner's brother was not made on
compassionate ground rather it was a
regular appointment.

7. Learned counsel for the petitioner
further submitted that the writ petition
was dismissed for non prosecution on
8.7.2008. It is contended that there was no
fault on the part of the petitioner as writ
petition was dismissed on account of
inadvertent mistake of the office of the
counsel and this Court having satisfied by
the cause shown by the learned counsel
for the petitioner recalled its order on
24.1.2011. He further submits that salary
of the petitioner has been stopped from
September, 2010 on account of dismissal
of the writ petition although he worked
during this period.

8. Learned Standing Counsel
submits that the appointment of the
petitioner was obtained by fraud and as
such no opportunity was necessary. He
further submits that the brother of the
petitioner
was
appointed
on
compassionate ground.

9. I have considered the respective
submissions of the learned counsel for the
parties and perused the record.

10. Indisputably, the petitioner's
father died in the year 1982 and at that
point of time the petitioner was minor. As
soon as he has attained majority he moved
application
for
appointment
on
compassionate ground and the respondent
no.1 herein appointed him. Petitioner's
appointment has been cancelled on
16.4.1992
alleging
therein
that
the
appointment of the petitioner has been
obtained by fraud. From the perusal of the
impugned order it is evident that serious
allegations of fraud has been alleged
against the petitioner. In paragraph 12 of
the writ petition the petitioner has stated
that no notice or opportunity was afforded
to the petitioner before passing the said
order. In the counter affidavit the said
averment has been replied in paragraph 10
wherein it is mentioned that since the
petitioner has played fraud hence no
opportunity was necessary. From the
reply of the counter affidavit it is
established that the petitioner was not
offered any opportunity in case the
petitioner was guilty of any fraud then it
was incumbent for the authorities to give
opportunity to the petitioner to explain his
stand. Simply by a stroke of pen that there
is allegation of fraud, his services has
been terminated.

11. The horizon of Natural Justice
has been expanded in last three decades
by Judge made law. In India Kraipak case
(A.K.Karaipak v. Union of India: AIR
1970 SC 150) marks watershed in the
2 All] Padam Kumar Agarwal Vs. The Inspector general (Registration) and Anr.
695
administrative law. Procedural fairness is
hallmark of civilized society. One of its
facets is "essence of justice". If a person's
right are prejudicially affected by any
order
of
judicial/administrative/quasi
judicial authority, the person must be
heard. The pre decisional hearing is
preferred to post decisional hearing.

12. The Supreme Court in a series of
decisions
have
expanded
its
limit.
Reference may be made to some of the
decisions Sangram Singh v. Election
Tribunal : AIR 1955 SC 425; State of
Orissa v. Binapani Dei and others : (1967)
2 SCR 625; Bool Chand (Dr.) v.
Chancellor, Kurukshetra University: AIR
1968 SC 292; Mohindar Singh Gill v.
Chief Election Commission (1970) SCC
405; Maneka Gandhi v. Union of India
(1978) 1 SCC 248; S.L.Kapoor v.
Jagmohan (1980) 4 SCC 379 and recent
judgement in P.D. Dinakaran (1) Judges
Enquiry Committee (2011) 8 SCC 380.

13. As regards, second submission
of learned counsel for the petitioner that
dismissal of writ petition for non
prosecution may not cause prejudice to
petitioner's interest, it is trite law that for
the fault of Advocate party should not
suffer. In the High Court personal
presence of a party is not required unlike
civil court. After engaging a counsel the
party becomes confident that his interest
is safe in the hands of his learned counsel.
He poses complete faith in him. The
Supreme Court in the case of Rafiq and
another v. Munshi Lal and another
(1981) 2 SCC 788 observed as under:

"The disturbing feature of the case is
that under our present adversary legal
system where the parties generally appear
through their advocates, the obligation of
the parties is to select his advocate, brief
him, pay the fees demanded by him and
then trust the learned Advocate to do the
rest of the things. The party may be a
villager or may belong to a rural area and
may have no knowledge of the court's
procedure. After engaging a lawyer , the
party may remain supremely confident
that the lawyer will look after his interest.
At the time of the hearing of the appeal,
the personal appearance of the party is not
only
required
but
hardly
useful.
Therefore,
the
party
having
done
everything in his power to effectively
participate in the proceedings can rest
assured that he has neither to go to the
High Court to inquire as to what is
happening in the High Court with regard
to his appeal nor is he to act as a
watchdog of the advocate that the letter
appears in the matter when it is listed. It is
no part of his job. Mr. A.K.Sanghi stated
that a practice has grown up in the High
court of Allahabad amongst the lawyers
that they remain absent when they do not
like a particular Bench. Maybe, we do not
know, he is better informed in this matter.
Ignorance in this behalf is our bliss. Even
if we do not put our seal of imprimatur on
the alleged practice by dismissing this
matter which may discourage such a
tendency, would it not bring justice
delivery system into disrepute. What is
the fault of the party who having done
every thing in his power expected of him
would suffer because of the default of his
advocate. If we reject this appeal , as Mr.
A.K.Sanghai invited us to do, the only
one who would suffer would not be the
lawyer who did not appear but the party
whose interest be represented. The
problem that agitates us is whether it is
proper that the party should suffer for the
inaction,
deliberate
omission,
or
misdemeanour of his agent. The answer
696 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
obviously is in the negative. Maybe that
the learned Advocate absented himself
deliberately or intentionally. We have no
material for ascertaining that aspect of the
matter. We say nothing more on that
aspect of the matter. However, we cannot
be a party to an innocent party suffering
injustice merely because his chosen
advocate defaulted. Therefore, we allow
this appeal, set aside the order of the High
Court both dismissing the appeal and
refusing to recall that order. We direct
that the appeal be restored to its original
number in the High Court and be disposed
of according to law. If there is a stay of
dispossession it will continue till the
disposal of the matter by the High Court.
There remains the question as to who
shall pay the costs of the respondent here.
As we feel that the party is not
responsible because he has done whatever
was possible and was in his power to do,
the costs amounting to Rs.200 should be
recovered
from
the
advocate
who
absented himself. The right to execute
that order is reserved with the party
represented by Mr.A.K.Sanghi."

14. Bearing in the mind the
aforesaid law, in my view petitioner shall
not be made to suffer on account of
dismissal of his writ petition for non
prosecution.
If,
petitioner
makes
representation for payment of salary for
the period when he actually worked, the
respondent no.2 shall pass a separate
order in respect of the said representation
having regard to the fact that if the
petitioner has worked during the said
period his salary shall be paid to him.

15. After careful consideration of the
facts, in my view the impugned order dated
16.4.1992 for aforestated reasons needs to be
set aside, it is accordingly set aside.

16. The respondents shall give
opportunity to the petitioner and pass a
fresh order. While passing the order, the
respondent no. 1, shall have the regard to
the fact that the petitioner is working in
compliance of the interim order dated
18.6.1992, passed by this Court and in the
counter affidavit there is no averment that
the work and conduct of the petitioner
was unsatisfactory.

17. Having regard to the facts and
circumstances of the case a direction is
issued upon the respondent no.1,Inspector
General of Registration, U.P. Allahabad
to give opportunity to the petitioner and
pass order in the light of the observations
made above within three months from the
date of communication of this order. The
interim protection granted by this Court to
the petitioner shall continue after fifteen
days of the decision taken by the
respondent no.1.

18. With the aforesaid observations
the writ petition is disposed of finally.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.05.2013

BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.

Civil Misc. Writ Petition No. 25133 Of 1992

Bhanu Pratap Singh Shishodia & Anr.

 ...Petitioners
Versus
D.I.O.S. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Vinod Sinha, Sri A.P. Singh Raghav
Sri Akhilesh Tripathi, Sri Anil Yadav
Sri S.P. Singh, Sri Jitendra Rana
Sri
S.P.S.
Chauhan