# Prabhat Bhatnagar v. State of U.P. & Ors. 810 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 9 ILRA 809
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-11
- **Case number:** Writ-A No. 65946 of 2008
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prabhat-bhatnagar-v-state-of-u-p-ors-810-indian-law-reports-allahabad-series-50761
- **Pages:** 5

## Headnote

C.S.C.

Held:
In disciplinary proceedings, mere recital in a
sale deed by a third party describing herself as
wife of a government servant is insufficient to
establish second marriage during subsistence of
first marriage. No conclusive evidence of
solemnization under the Hindu Marriage Act,
1955 was brought on record. In absence of such
proof, award of major penalty of dismissal is
unsustainable.
Even
if
misconduct
were
established, as per Rule 29 of U.P. Government
Servants Conduct Rules, 1956, only a minor
penalty could be imposed. Orders of dismissal
and appellate rejection quashed. Petitioner
entitled to reinstatement with full consequential
benefits.

Case Law Discussed:

## Text

9 All. Prabhat Bhatnagar Vs. State of U.P. & Ors.
809
stands concluded against the binding
authority of Deepa Vashishtha, in view of
a much later decision of the Supreme Court
in State of U.P. and others v. Gobardhan
Lal, (2004) 11 SCC 402. In Gobardhan
Lal (supra), spelling out the scope of
interference by this Court, in the exercise
of jurisdiction under Article 226 of the
Constitution of India, with an order of
transfer passed, even in violation of the
transfer policy, it was observed:

"7. It is too late in the day for any
government servant to contend that once
appointed or posted in a particular place or
position, he should continue in such place
or position as long as he desires. Transfer
of an employee is not only an incident
inherent in the terms of appointment but
also implicit as an essential condition of
service in the absence of any specific
indication to the contra, in the law
governing or conditions of service. Unless
the order of transfer is shown to be an
outcome of a mala fide exercise of power
or violative of any statutory provision (an
Act or rule) or passed by an authority not
competent to do so, an order of transfer
cannot lightly be interfered with as a matter
of course or routine for any or every type of
grievance sought to be made. Even
administrative guidelines for regulating
transfers or containing transfer policies at
best may afford an opportunity to the
officer or servant concerned to approach
their higher authorities for redress but
cannot have the consequence of depriving
or denying the competent authority to
transfer a particular officer/servant to any
place in public interest and as is found
necessitated by exigencies of service as
long as the official status is not affected
adversely and there is no infraction of any
career prospects such as seniority, scale of
pay and secured emoluments. This Court
has often reiterated that the order of
transfer made even in transgression of
administrative guidelines cannot also be
interfered with, as they do not confer any
legally enforceable rights, unless, as
noticed supra, shown to be vitiated by mala
fides or is made in violation of any
statutory provision."

14. In view of the law well settled, a
violation of the notified transfer policy of
the State, that is in the nature of
administrative guidelines, as distinguished
from statutory rules, does not afford a right
to
the
Government
Servants,
when
transferred in its violation, to assail the
transfer on that ground. This Court does not
find any good ground to interfere with the
impugned order.

15. However, in case after the
petitioner joins the station of transfer
and represents his case, the Director, Cooperative Societies and Panchayat Audit,
Lucknow, U.P is ordered to decide the
petitioner's representation within 15 days
of its receipt and communicate its result
to
the
petitioner
within
a
week
thereafter.

16. This petition is disposed of in
terms of the aforesaid orders. Costs easy.
----------
(2023) 9 ILRA 809
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.08.2023

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Writ-A No. 65946 of 2008

Prabhat Bhatnagar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
810 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Sri Sanjay Kumar Om, Sri Chandra Shekhar
Sinha, Sri Dileep Kumar Srivastava, Sri
Rajeev Trivedi, Sri S.K. Shukla

Counsel for the Respondents:
C.S.C.

Held:
In disciplinary proceedings, mere recital in a
sale deed by a third party describing herself as
wife of a government servant is insufficient to
establish second marriage during subsistence of
first marriage. No conclusive evidence of
solemnization under the Hindu Marriage Act,
1955 was brought on record. In absence of such
proof, award of major penalty of dismissal is
unsustainable.
Even
if
misconduct
were
established, as per Rule 29 of U.P. Government
Servants Conduct Rules, 1956, only a minor
penalty could be imposed. Orders of dismissal
and appellate rejection quashed. Petitioner
entitled to reinstatement with full consequential
benefits.

Case Law Discussed:

1. Ram Milan Dubey Vs St. of U.P. & ors.,
Service Single No. 2681 of 2010

2. Shravan Kumar Pandey Vs St. of U.P. & ors.,
2010 (8) ADJ 243

3. Smt. Raj Bala Sharma Vs St. of U.P. & ors.,
2009 (2) LBESR 949 (All)

(Delivered by Hon'ble Kshitij Shailendra, J.)

1. Heard Shri Sanjay Kumar Om,
learned counsel for the petitioner, learned
Standing Counsel for the State-respondents
and perused the record.

2. The petitioner was appointed on
Group 'G' post as an Apprentice in the
office of District Development Officer,
Bareilly on 08.04.1999. There is no dispute
about the fact that the petitioner married to
one Anuraddha Saxena on 24.11.1999,
however, the controversy revolves around a
second marriage allegedly performed by
the petitioner with one Anju Khandelwal
who was working with him in the same
department. The allegation against the
petitioner was to the effect that during the
subsistence
of
first
marriage
with
Anuraddha Saxena, he performed second
marriage and, therefore, he committed a
misconduct. A charge-sheet was issued to
the petitioner raising the same charges. A
reply was submitted by the petitioner, in
which, factum of performance of second
marriage was denied by him.

3. It is the case of the petitioner that
no proper enquiry was conducted and
simply
after
considering
the
reply
submitted by the petitioner, alleged enquiry
was completed and, later on, by the order
impugned dated 04.07.2005, the petitioner
was awarded major penalty in terms of
dismissal from service. The petitioner
preferred a departmental appeal which was
also dismissed.

4. The argument of Shri Sanjay
Kumar Om, learned counsel for the
petitioner is to the effect that the
petitioner's wife Anuradha Saxena moved
complaints before the department alleging
second marriage and there was no evidence
on record to substantiate performance of
second marriage and commission of alleged
offence of bigamy or misconduct on that
line, except that before the department,
there was a sale deed, by which, certain
property
was
purchased
by
Anju
Khandelwal, in which, she had described
herself as wife of the petitioner and the
allegation of his wife Anuradha Saxena. It
is further contended that even the said error
was corrected by way of execution of
supplementary deed (titamma). He further
submits that departmental enquiry was
9 All. Prabhat Bhatnagar Vs. State of U.P. & Ors.
811
conducted against Anju Khandelwal also
and she was not awarded major punishment
but only censure entry was awarded to her
by order dated 23.11.2011 which was
passed during the pendency of the writ
petition and has been brought on record
alongwith amendment application. The
submission is that once while awarding
censure entry to Anju Khandelwal, clear
finding has been recorded that no marriage
was
solemnized
in
between
Anju
Khandelwal and the petitioner, the issue
that falls for consideration before this Court
is that even accepting the fact that Anju
Khandelwal had described herself as wife
of the petitioner in a sale deed, whether the
same itself amounts to sufficient evidence
with regard to performance of second
marriage by the petitioner during the
subsistence of first marriage.

5. Another issue is to the effect that
once Rule 29 of the U.P. Government
Servants Conduct Rules, 1956 (in short 'the
Rules, 1956') clearly provides that, in case,
the government servant having a wife
contracts
another
marriage
without
obtaining permission of the Government,
only minor punishment can be awarded in
the nature of withholding of increments for
three years. Shri Om submits that even this
punishment can be awarded only when
performance
of
second
marriage
is
established.

6. Learned Standing Counsel submits
that once the lady had described herself as
wife of the petitioner, no further evidence
was required as relationship between the
husband and wife can be established by
placing
reliance
upon
any
oral
or
documentary statement made by the parties
to the marriage. He further submits that
order passed in case of Anju Khandelwal
during the pendency of the writ petition is
irrelevant
inasmuch
as
when
the
punishment was awarded to the petitioner,
the said order was not in existence.

7. Having heard learned counsel for
the parties, I find that conditions of a valid
Hindu marriage are narrated under Section
5 of the Hindu Marriage Act, 1955 i.e. to
say
that,
in
case,
anybody
alleges
performance of any marriage, whether first
or second, it has to be established before
the Court or even administrative authorities
that marriage was lawfully performed as
per the provisions of law, which in the
present case, is the Hindu Marriage Act,
1955.

8. Before the Department, there was
nothing on record to demonstrate that
marriage between the petitioner and Anju
Khandelwal was solemnized, except, the
aforesaid sale deed and the aforesaid recital
contained therein and even that was
corrected
later
on.
Though,
Anju
Khandelwal was also punished in terms of
award of a minor penalty in the nature of
censure entry, even if for the sake of
argument made on behalf of the State, it is
accepted that act of correction of sale deed
was an after-thought on the part of Anju
Khandelwal to avoid any action in the
disciplinary proceedings, the question still
remains as to whether, in law even if, status
of Anju Khandelwal as wife of the
petitioner as described in a sale deed is
treated to be substantiated and subsequent
correction is ignored, whether the said
recital, as it is, would be sufficient to
justify the order impugned.

9. In this regard, reference to Section
50 of the Indian Evidence Act, 1872 (in
short 'the Act, 1872') is required to be
made. The said provision reads as
follows:-
812 INDIAN LAW REPORTS ALLAHABAD SERIES

"50. Opinion on relationship,
when relevant.-When the Court has to
form an opinion as to the relationship of
one person to another, the opinion,
expressed by conduct, as to the existence of
such relationship, of any person who, as a
member of the family or otherwise, has
special means of knowledge on the subject,
is a relevant fact:

Provided that such opinion shall
not be sufficient to prove a marriage in
proceedings under the Indian Divorce Act,
1869 (4 of 1869) or in prosecutions under
section 494, 495, 497 or 498 of the Indian
Penal Code (45 of 1860)."

10. In view of the above, even if the
statement made by Anju Khandelwal in the
sale deed or even by the first wife of the
petitioner before the department as to the
relationship between Anju Khandelwal and
petitioner is a fact so as to give an opinion
with regard to solemnization of marriage
between him and Anju Khandelwal, the
proviso to Section 50 of the Act, 1872 would
read contrary to this and such opinion shall
not be sufficient to prove marriage in
proceedings under the Indian Divorce Act or
prosecution under Sections 494, 495, 497 or
498 I.P.C. Meaning thereby that whenever a
question arises as to whether an offence has
been committed by a person which is
punishable under any of the provisions of
the aforesaid Sections of I.P.C., the proviso
attached to Section 50 of the Act, 1872
would save that person as regards to forming
an opinion in connection with second
marriage which might be an offence under
I.P.C. This principle would apply in
examining the aspect of misconduct also in a
service matter particularly when the issue is
the same, i.e., performance of second
marriage during the subsistence of first
marriage.

11. Considering the aforesaid factual
and legal proposition, as explained in the
Hindu Marriage Act, 1955 and Indian
Evidence Act, 1872 and there being no
other material before this Court or before
the Authorities, I find that punishing the
petitioner by presuming performance of
second marriage during subsistence of first
marriage was not according to fact and
law.

12. The finding to this effect
contained in the orders impugned, is
therefore, unsustainable.

13. Insofar as the award of
punishment to the petitioner is concerned,
even when misconduct to the aforesaid
effect is established on the part of the
government servant, only a minor penalty
can be awarded and not a major penalty.

14. Rule 29 of the Rules of 1956, in
this regard is quoted as under:

"29(1): No Govt. Servant who has
a wife living shall contract another
marriage without fresh obtaining the
permission of the Govt. notwithstanding
that
such
subsequent
marriage
is
permissible under the personal law for the
time being applicable to him.

(2) No female Govt. Servant shall
marry any person who has a wife living
without first obtaining permission of the
Govt.

(3) A minor punishment to be
imposed in contravention of Sub Rule(1) or
Sub Rule (2) shall be withholding of
increments for three years."

15. Reference to the following
authorities can be made in this regard:-
9 All. H.K.S. Developers Pvt. Ltd. Vs. State of U.P. & Ors.
813

(a). Service Single No. 2681 of
2010 (Ram Milan Dubey Vs. State of U.P.
and others);

(b). Shravan Kumar Pandey Vs.
State of U.P. and others, 2010 (8) ADJ
243;

(c).
2009
(2)
LBESR
949
(Allahabad) Smt. Raj Bala Sharma Vs.
Sate of U.P. and others.

16. In view of the above discussion,
once I have arrive at a conclusion that there
was no evidence to establish performance
of second marriage during the subsistence
of first marriage, both the orders impugned
are unsustainable and are liable to be
quashed.

17. The writ petition succeeds and is
allowed.

18. The orders dated 04.07.2005 and
23.08.2008 respectively passed by the
District Development Officer, Bareilly and
Appellate Authority are hereby quashed.

19. The respondents are directed to
reinstate the petitioner in service within a
month after receipt of certified copy of
this order. The petitioner shall be entitled
to all financial and other consequential
service benefits from the date of his
dismissal
from
service
till
his
reinstatement and thereafter.
----------
(2023) 9 ILRA 813
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.08.2023

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ-B No. 1533 of 2021

H.K.S. Developers Pvt. Ltd. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rahul Agarwal, Poorva Agarwal

Counsel for the Respondents:
Sri Punit Kumar Gupta, Sri Abhishek
Shukla, C.S.C.

Consolidation - Title Dispute - Transferee
Pendente Lite - Recall Application - Sale
Deed - Unregistered Deed - Finality of
Order

Held: The petitioner, claiming rights through a
sale deed dated 26.4.2010, executed during
the pendency of consolidation proceedings
and registered on 7.10.2014, after the
revisional court's order dated 17.4.2013, is
not entitled to seek recall of the said order.
The title dispute, originating in 1988 and
finalized
vide
the
Deputy
Director
of
Consolidation's
order
dated
17.4.2013,
attained finality upon dismissal of related
writ petitions on 11.5.2015, based on a
compromise among tenure holders. The
petitioner, as a transferee pendente lite,
cannot reopen the settled title dispute after
a prolonged delay, particularly on the basis
of an unregistered sale deed at the time of
the
revisional
court's
decision.
The
Additional
District
Magistrate
rightly
rejected the petitioner's recall/restoration
application
dated
18.6.2018,
as
the
petitioner's vendors were heard, and the
order dated 17.4.2013 was not ex parte. No
interference warranted under Article 226 of
the Constitution.

Writ petition dismissed, interim order
vacated.

Case Law Discussed:

1. Thomson Press (India) Ltd. Vs Nanak Builders
& Investors P. Ltd. & ors., AIR 2013 SC 2389 -
Distinguished.