# Pradeep Kumar v. State of U.P. & Ors

- **Citation:** (2019) 4 ILRA 229
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-16
- **Case number:** Service Single No. 23674 of 2019
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pradeep-kumar-v-state-of-u-p-ors-44988
- **Pages:** 11

## Headnote

A. Service Law - U.P. Intermediate
Education Act, 1921- Post falling under
promotional quota- Petitioner appointed
on direct recruitment basis as Assistant
Clerk - Post cannot be treated as a direct
recruitment post, instead, it be treated
as promotional post.

Held - as the case has been argued
threadbare, the Court proceeds to consider
whether with the promotion of a person
appointed on compassionate ground, the
promotee would be considered a direct recruit.
It is not the case of the petitioner that post of
Head Clerk has been filled in by direct
recruitment rather it is admitted that the post
has been filled in by promotion of Sri Rajiv
Saxena. Thus, it can safely be said that when
the said post of Head Clerk was filled in on
account of promotion of Sri Rajiv Saxena then
the said post would go towards the promotion
quota. Admittedly, the other two posts were
also filled in by promotes leaving two posts
against direct recruit quota. Once it was the
post meant for direct recruitment quota which
was filled in with the promotion of the
petitioner against which complaints were made
and thereafter it was found that the approval
which had been granted to the promotion of
the petitioner against the direct recruitment
post was illegally granted. (Para 12)

Writ Petition dismissed. (E-9)

List of cases cited: -
230 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

4 All. Pradeep Kumar Vs. State of U.P. & Ors.
229
the same to the disciplinary authority, that
would not constitute any additional
material before the disciplinary authority
of which the delinquent employee has no
knowledge. However, when the Inquiry
Officer goes further and records his
findings, as stated above, which may or
may not be based on the evidence on
record or are contrary to the same or in
ignorance of it, such findings are an
additional material unknown to the
employee but are taken into consideration
by the disciplinary, authority while
arriving at its conclusion. Both the
dictates of the reasonable opportunity as
well as the principles of natural justice,
therefore,
require
that
before
the
disciplinary, authority comes to its own
conclusions, the delinquent employee should
have an opportunity to reply to the Inquiry
Officer's findings. The disciplinary authority
is then required to consider the evidence, the
report of the Inquiry Officer and the
representation of the employee against it."

19. In view of the above, the order
dated 05.09.1994 deserves to be quashed
and matter needs to be revisited by the
disciplinary authority and the order dated
05.09.1994
is
accordingly
hereby
quashed. The matter is remitted to the
disciplinary authority to reconsider the
reply/ explanation of the petitioner dated
29/30.10.1993 and pass order afresh in
accordance with law. Needless to say the
order shall be reasoned and speaking.

20. Writ petition is allowed with the
aforesaid observations and directions with
no order as to costs.
----------

(2019)12 ILR A229

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.12.2019

BEFORE
THE HON'BLE ABDUL MOIN, J.

Service Single No. 23674 of 2019

Pradeep Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Brijesh Kumar Singh

Counsel for the Respondents:
C.S.C., Sri S.K. Upadhyay

A. Service Law - U.P. Intermediate
Education Act, 1921- Post falling under
promotional quota- Petitioner appointed
on direct recruitment basis as Assistant
Clerk - Post cannot be treated as a direct
recruitment post, instead, it be treated
as promotional post.

Held - as the case has been argued
threadbare, the Court proceeds to consider
whether with the promotion of a person
appointed on compassionate ground, the
promotee would be considered a direct recruit.
It is not the case of the petitioner that post of
Head Clerk has been filled in by direct
recruitment rather it is admitted that the post
has been filled in by promotion of Sri Rajiv
Saxena. Thus, it can safely be said that when
the said post of Head Clerk was filled in on
account of promotion of Sri Rajiv Saxena then
the said post would go towards the promotion
quota. Admittedly, the other two posts were
also filled in by promotes leaving two posts
against direct recruit quota. Once it was the
post meant for direct recruitment quota which
was filled in with the promotion of the
petitioner against which complaints were made
and thereafter it was found that the approval
which had been granted to the promotion of
the petitioner against the direct recruitment
post was illegally granted. (Para 12)

Writ Petition dismissed. (E-9)

List of cases cited: -
230 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Ramji Singh Vs. District Inspector of
Schools, Ballia and Ors, 2006 (2) ESC 1015
(All) (distinguished)

2. Jai Kumar Singh Vs. The District Inspector
of Schools and Ors (2001) 2 UPLBEC 1517

(distinguished)

3. In re: State of U.P and Ors Vs. Santosh
Kumar Mishra & ors, Special Appeal Defective
No. 577 of 2017 (distinguished)

4. M.C. Mehta vs. UOI & ors, (1999)6 SCC 237
5. Roshan Lal Tandon vs. Union of India AIR
1967 SC 1889

6. State of J & K vs. Triloki Nath Khosa (1974)
1 SCC 19

7. B. Manmad Reddy and others vs. Chandra
Prakash Reddy and others (2010) 3 SCC 314

(Delivered by Hon'ble Abdul Moin, J.)

1. Heard learned counsel for the
petitioner,
learned
Standing
counsel
appearing for the State-respondents and
Sri
S.K.Upadhya,
learned
counsel
appearing as an Intervenor.

2. Under challenge is the order dated
19.08.2019 passed by the Joint Director of
Education, Lucknow i.e respondent no. 2
by which it has been found that the
appointment of the petitioner as Assistant
Clerk and the subsequent approval
granted by the District Inspector of
Schools is vitiated and consequently the
respondent no. 2 has directed for initiation
of inquiry against the guilty employees
after cancelling the promotion of the
petitioner.

3. Learned counsel for the petitioner
contends that a recommendation for
promotion of the petitioner who was
working on a Class IV post in the
Institution to the post of Assistant Clerk
was
made
on
10.11.2016.
As
on
10.11.2016, there were five posts in the
Institution. i.e one post of Head Clerk and
four posts of Assistant Clerks whereby
taking the total to five posts. In terms of
Regulation 2 (2) of Chapter III of
Regulations
framed
under
U.P.
Intermediate
Education
Act,
1921
(hereinafter referred to as "Act, 1921"),
the post of Head Clerk and Assistant
Clerk are clubbed so as to arrive at the
quota for promotion or direct recruitment
per which the appointments or promotions
are to take place on the said posts. The
said Regulation provides that 50 percent
posts out of total sanctioned post of Head
Clerk and clerical cadre shall be filled by
promotion of Clerks and Class IV
employees working in the organization. In
terms of Note to Regulation 2, it is
provided that while computing 50% of the
post, the number of post less than half
should be ignored and half or more than
half should be treated as one, as such, in
this case, it would be 2.5 or three posts for
promotion.

4. Learned counsel for the petitioner
contends that the petitioner belongs to
reserve category. There is one sanctioned
post of Head Clerk and four sanctioned
posts of Assistant Clerks i.e. total five in
the Institution. As per the aforesaid Rules,
three posts would fall against the
promotion quota i.e. to be filled in by
promotion. It is contended that two posts
of Assistant Clerks have been filled in
with the promotion of two Class IV
employees namely Sri Prem Lal and Sri
Rajesh Singh. A post of Assistant Clerk
fell vacant with the promotion of the said
Assistant Clerk as Head Clerk and as
three posts are meant for promotees,
consequently the third post should have
4 All. Pradeep Kumar Vs. State of U.P. & Ors.
231
gone to the promotee i.e. the petitioner.
The said post was lying vacant since
31.08.2013 and considering that the
petitioner was working on a Class IV post
since 22.05.2010, he was promoted as
Assistant Clerk and on 25.11.2016 the
District Inspector of Schools (II) granted
approval
to
the
promotion
of
the
petitioner as Assistant Clerk. A copy of
the order dated 25.11.2016 has been filed
as Annexure-6 to the writ petition. The
petitioner was issued with an appointment
letter dated 18.03.2017, a copy of which
is Annexure-7 to the writ petition, and he
also joined on 21.03.2017 as Assistant
Clerk and his pay fixation was also made
on 11.08.2017. Subsequent thereto, the
impugned order dated 19.08.2019 was
passed, a copy of which is Annexure-1 to
the writ petition, by the Joint Director of
Education cancelling the promotion of the
petitioner w.e.f. the date of promotion
itself and directing for initiation of inquiry
against the guilty officials. Learned
counsel for the petitioner argues that the
ground taken in the impugned order is
that the Institution in the meeting of the
Management
Committee
dated
10.11.2016
had
recommended
for
promotion of the petitioner although, on
the date of proposal, the post of Head
Clerk and two Assistant Clerks were
already occupied by the promotees and
consequently
the
promotion
of
the
petitioner on the post of Assistant Clerk
was erroneously done as the said post fell
under the direct recruitment quota and
was to be filled in through direct
recruitment.

5. Learned counsel for the petitioner
has placed reliance on a Division Bench
judgment of this Court passed in Special
Appeal Defective No. 577 of 2017 Inre;
State of U.P and Ors Vs. Santosh Kumar
Mishra and Ors, a copy of which has been
filed as annexure RA 4 to the rejoinder
affidavit to contend that the post of Head
Clerk has to be treated to be filled in by
direct recruitment inasmuch as one Sri
Rajiv Saxena had initially been appointed
as Assistant Clerk through order dated
24.03.1995, a copy of which is annexure
RA 3 to the rejoinder affidavit on
compassionate grounds. On the post of
Head Clerk falling vacant, Sri Rajiv
Saxena
had
been
promoted
and
consequently once any compassionate
appointment can only be made against a
direct recruitment quota, consequently the
promotion of Sri Saxena has also to be
treated as a promotion made on direct
recruitment basis and, as such the
respondents have patently erred in the
impugned order in contending that as the
post of Head Clerk was filled in through
promotion as such, the same has to be
treated as against promotee quota. It is
also argued that in case the analogy given
by the petitioner is accepted then the
impugned order would become vitiated in
the eyes of law as there would be only
two promotees as the post of Head Clerk
occupied by Sri Rajiv Saxena would be
treated as a post for Direct Recruit leaving
one post to be filled in through the
promotion quota which has correctly been
made with the promotion of the petitioner.
Another ground taken to challenge the
said order is that the Joint Director of
Education, Lucknow has no jurisdiction to
pass the impugned order as the competent
authority for granting approval is District
Inspector of Schools and thus the
impugned order is patently without
jurisdiction.

6. This Court after considering the
facts of the case had summed up the issue
on 29.11.2019 as per the aforesaid
232 INDIAN LAW REPORTS ALLAHABAD SERIES
arguments raised by the learned counsel
for the petitioner which order, for the sake
of convenience, is reproduced below:-

"Heard learned counsel for the
petitioner, learned
Standing
counsel
appearing for the State-respondents and
Sri S.K. Upadhyay, learned counsel
appeared as an intervenor.

Under challenge is the order
dated 19.08.2019 passed by the Joint
Director of Education, Lucknow i.e
respondent no. 2 by which it has been
found that the appointment of the
petitioner as Assistant Clerk and the
subsequent approval granted by the
District Inspector of Schools is vitiated
and consequently the respondent no. 2
has directed for initiation of inquiry
against the guilty employees.

From a perusal of records it
comes out that the recommendation for
promotion of the petitioner to the post of
Assistant Clerk took place on 10.11.2016.
As on 10.11.2016, there were five posts in
the Institution with which the present
controversy is concerned i.e one post of
Head Clerk and four posts of Assistant
Clerks whereby taking the total as five
posts. In terms of Regulation 2 (2) of
Chapter III of Regulations framed under
U.P. Intermediate Education Act, 1921
(hereinafter referred to as "Act, 1921"),
the post of Head Clerk and Assistant
Clerk are clubbed so as to arrive at the
quota i.e promotion or direct recruitment
with
which
the
appointments
or
promotions are to take place. The said
quota provides that 50 percent posts out
of total sanctioned post of Head Clerk
and clerical cadre shall be filled by
promotion of Clerks and Class IV
employees working in the organization.
From a perusal of the averments made in
paragraph 6 of the counter affidavit it
comes out that one post of Head Clerk
and two posts of Assistant Clerks were
already filled as on 10.11.2016 in by
persons who had been promoted leaving
two posts to be filled in by direct
recruitment. It is contended that the
petitioner had been promoted against the
quota manned for direct recruitment and
his promotion was thus found to be
irregular and consequently the impugned
order has been passed.

Learned
counsel
for
the
petitioner has placed reliance on a
Division Bench judgment of this Court
passed in Special Appeal Defective No.
577 of 2017 Inre; State of U.P and Ors
Vs. Santosh Kumar Mishra and Ors, a
copy of which has been filed as annexure
RA 4 to the rejoinder affidavit to contend
that the post of Head Clerk has to be
treated
to be
filled
in
by
direct
recruitment inasmuch as one Sri Rajiv
Saxena has initially been appointed as
Assistant Clerk through order dated
24.03.1995, a copy of which is annexure
RA 3 to the rejoinder affidavit on
compassionate grounds. On the post of
Head Clerk falling vacant, Sri Rajiv
Saxena
had
been
promoted
and
consequently once any compassionate
appointment can only be made against a
direct recruitment quota, consequently the
promotion of Sri Saxena has also to be
treated as a promotion made on direct
recruitment basis and consequently the
respondents have patently erred to
contend that the post of Head Clerk was
filled in through a promotion and the
same has to be treated as direct
recruitment and thus in case the analogy
given by the petitioner is accepted then
the impugned order would become
vitiated in the eyes of law as there would
be only two promotees and one direct
recruit i.e Sri Rajiv Saxena leaving one
4 All. Pradeep Kumar Vs. State of U.P. & Ors.
233
post to be filled in through the promotion
quota which has correctly been made with
the promotion of the petitioner.

Having
heard
the
learned
counsel for the petitioner, the point in
issue would be that where a person has
been appointed as Assistant Clerk on
compassionate grounds meaning thereby
that his appointment would be treated to
be against the direct recruitment quota
then whether his promotion as Head
Clerk would also be treated to have been
made against direct recruitment quota.

Learned
counsel
for
the
petitioner prays for some time to address
the Court on the aforesaid issue. As such,
on his request, list this case after ten days
as fresh."

7. Today, Sri B.K.Singh, learned
counsel appearing for the petitioner has
placed reliance on a Division Bench
judgment of this Court in the case of
Ramji Singh Vs. District Inspector of
Schools, Ballia and Ors reported in 2006
(2) ESC 1015 (All) as well as a judgment
of this Court in the case of Jai Kumar
Singh Vs. The District Inspector of
Schools and Ors reported in (2001) 2
UPLBEC 1517 to contend that the
aforesaid query of this Court stands
answered in both the judgments.

8. On the other hand, learned
Standing
counsel
on
the
basis
of
averments contained in the counter
affidavit argues that through letter dated
10.11.2016
sent
by
the
Management/Principal of the Institution, a
recommendation/proposal for promotion
of the petitioner, a Class IV employee on
the vacant post of Clerk which was vacant
after promotion of Sri Nankau on the post
of Head Clerk on 31.08.2013, was made.
The promotion of the petitioner was
approved by the then District Inspector of
Schools vide order dated 25.11.2016.
Complaints were received in the office of
Joint Director of Education, Lucknow
against the said promotion but to no avail.
Subsequent thereto, through letter dated
10.04.2019 issued by the Joint Director of
Education,
the
petitioner
and
the
Manager/Principal of the Institution were
called for hearing on 23.04.2019 on which
date the petitioner and Principal of the
Institution submitted their case. Records
were also produced and after perusal of
the file it was revealed that when the
petitioner was promoted, the promotion
quota of the college in the clerical cadre
was complete and accordingly next
promotion could only be made as direct
recruitment. It is admitted that there are
five posts in the clerical cadre in the
Institution namely one post of Head Clerk
and four posts of Assistant Clerk. The
post of Assistant Clerk had fallen vacant
on 31.08.2013 on account of Promotion of
Sri Nankau on the post of Head Clerk and
the resultant vacancy was sought to be
filled in with the promotion of Sri
Pradeep Kumar but on the said date one
Head Clerk and two Assistant Clerks were
already working in the College in
question in the promotion quota and
consequently
the
promotion
of
the
petitioner had been done against the direct
recruitment quota which was patently
illegal and the approval thereto was also
done illegally by the District Inspector of
Schools
through
his
order
dated
25.11.2016.
Taking
all
this
into
consideration, the impugned order was
passed by the Joint Director of Education.

9. Sri Vinod Shukla, learned
Standing counsel submits that when the
promotion of the petitioner was itself
illegal, consequently even if an order was
234 INDIAN LAW REPORTS ALLAHABAD SERIES
passed by the Joint Director of Education
who had no jurisdiction to do so and the
said order is to be set aside on the ground
of technicality raised by the petitioner yet
as the petitioner has argued his case
threadbare,
the
Court
may
itself,
considering the aforesaid facts, pass
suitable orders in this regard instead of
remanding the said matter on technicality.
Placing reliance on the judgment of M.C.
Mehta vs. Union of India and others
reported in (1999)6 SCC 237 it is
contended that futile writs may not be
issued and the Court may itself go into the
merits of the case.

10. Sri S.K.Upadhyay, learned counsel
appearing for the Intervenor also adopts the
arguments of learned Standing counsel.

11. Heard learned counsel appearing for
the contesting parties and perused the records.

12. From a perusal of the records and
the arguments advanced by the learned
counsels for the contesting parties it comes
out that there are five posts in clerical cadre
in the Institution of which one post is for
Head Clerk and four posts are for Assistant
Clerk. In terms of the relevant regulation, the
quota would be three posts for promotion
quota while two posts are meant for direct
recruits. The controversy revolves around the
post which fell vacant on account of Sri
Rajiv Saxena, Assistant Clerk who was
appointed on compassionate grounds having
been promoted as Head Clerk. The name of
Sri Rajiv Saxena being promoted as Head
Clerk has come for the first time in the
Rejoinder affidavit while in the writ petition,
it had been stated by the petitioner that Sri
Nankau Prasad, an Assistant Clerk had been
promoted as Head Clerk and thus the post of
Assistant Clerk fell vacant. The official
respondents have also indicated about the
post of Assistant Clerk having fallen vacant
on account of promotion of Sri Nankau
Prasad. Thus, it is apparent that the petitioner
is trying to set up a new case through
rejoinder
affidavit
which
is
legally
impermissible. However, as the case has
been argued threadbare, the Court proceeds
to consider whether with the promotion of a
person appointed on compassionate ground,
the promotee would be considered a direct
recruit. It is not the case of the petitioner that
post of Head Clerk has been filled in by
direct recruitment rather it is admitted that
the post has been filled in by promotion of
Sri Rajiv Saxena. Thus, it can safely be said
that when the said post of Head Clerk was
filled in on account of promotion of Sri Rajiv
Saxena then the said post would go towards
the promotion quota. Admittedly, the other
two posts were also filled in by promotes
leaving two posts against direct recruit quota.
Once it was the post meant for direct
recruitment quota which was filled in with
the promotion of the petitioner against which
complaints were made and thereafter it was
found that the approval which had been
granted to the promotion of the petitioner
against the direct recruitment post was
illegally granted and considering these facts,
the impugned order has been passed by the
Joint Director of Education after perusal of
the records by invalidating the promotion of
the petitioner from the date of his promotion
itself and action has also been directed to be
initiated against the guilty officials then
taking into consideration the aforesaid facts,
this Court does not find any illegality or
infirmity in the impugned order issued by the
Joint Director of Education, Lucknow.

13. So far as the judgment of Jai
Kumar Singh (supra) is concerned, the
facts were that in the Institution in
question there were three sanctioned posts
of
Class
III
employees.
Relevant
4 All. Pradeep Kumar Vs. State of U.P. & Ors.
235
Regulations of Chapter III of the Act,
1921 provided that 50 percent of the total
sanctioned strength of Head Clerk and
Clerk should be filled in by promotion.
The Note of Regulation 2 further provides
that while computing 50 percent of the
post, the number less than half should be
ignored and half or more than half should
be treated as one. The total number of
sanctioned
strength
being
three,
promotion quota according to Regulation
2 (2), comes to 1.5 and by virtue of Note,
two posts were to be treated under
promotion quota. The first post fell vacant
on 31.12.1994 on the retirement of Sri
Basudeo Singh. One Sri Triloki Nath, a
Class IV employee staked his claim for
promotion under Chapter III, Regulation
II of the Intermediate Education Act on
the ground that the said post is under
promotional quota. The management
instead of promoting Sri Triloki Nath,
appointed Sri Kunwar Tribuwan Singh on
direct recruitment basis which led to
litigation. Meanwhile one Sri Baij Nath
Prasad who was working as Assistant
Clerk was promoted as Head Clerk on the
retirement of Sri Achhaybar Nath Mishra.
On account of Sri Baij Nath Prasad being
promoted, his post had fallen vacant and
again the Management appointed one Sri
Jai Kumar Singh as a direct recruit. As the
appointment of Sri Jai Kumar Singh was
not approved he filed Writ Petition No.
10891 of 1996 praying for approval of his
appointment. The claim of Jai Kumar
Singh and Kunwar Tribhuwan Singh were
considered and an order dated 04.05.1998
was passed whereby the appointment of
Jai Kumar Singh was held to be bad and
the appointment of Kunwar Tribhuwan
Singh
was
approved.
In
such
circumstances, this Court held that the
post which had fallen vacant due to
retirement of Sri Basudeo Singh was
against promotion quota and had to be
filled
in
by
promotion
and
the
appointment of Kunwar Tribhuwan Singh
as direct recruit was done wrongly by the
District Inspector of Schools and on the
post of Baij Nath the promotion of Sri
Triloki
Nath
ought
to
have
been
considered. The said decision does not
deal with the point in issue.

14. So far as the judgment of Ramji
Singh (supra) is concerned, the said
judgment too does not deal with the
question as has been raised by this Court
in the order dated 29.11.2019.

15. So far as the judgment of Santosh
Kumar Mishra (supra) is concerned,
suffice to state that a categoric averment
was made in the said case on behalf of the
State Government that the post of Head
Clerk was occupied by direct recruitment.
However, in the
instant case, the
respondents themselves have stated that
the post of Head Clerk was occupied by a
promotee. Thus, the said judgment in the
case of Santosh Kumar Mishra (supra)
is distinguishable on its own facts and
will not be applicable in the facts of the
instant case.

16. In this regard, though no
assistance has been rendered by either
learned counsel for the petitioner or the
learned Standing Counsel yet the Court
has itself come across certain judgments
which have a direct bearing on the issue
in question.

17. Hon'ble Supreme Court in the
case of Roshan Lal Tandon vs. Union of
India - AIR 1967 SC 1889 has held that
where the promotees and direct recruits
form one class in Grade D they could not
be thereafter classified again depending
236 INDIAN LAW REPORTS ALLAHABAD SERIES
upon the source from which they are
drawn for the purpose of promotion to the
next higher grade. For the sake of
convenience, relevant observations of
Hon'ble Supreme Court are reproduced as
under:-

"5.....In
our
opinion,
the
constitutional objection taken by the
petitioner to this part of the notification is
well-founded and must be accepted as
correct. At the time when the petitioner
and the direct recruits were appointed to
Grade 'D', there was one class in Grade
'D' formed of direct recruits and the
promotees from the grade of artisans. The
recruits from both the sources to Grade
'D' were integrated into one class and no
discrimination could thereafter be made
in favour of recruits from one source as
against the recruits from the other source
in the matter of promotion to Grade 'C'.
To put it differently, once the direct
recruits and promotees are absorbed in
one cadre, they form one class and they
cannot be discriminated for the purpose
of further promotion to the higher Grade
'C'."

18. Likewise, a Constitution Bench
of the Apex Court in the case of State of
J & K vs. Triloki Nath Khosa-(1974) 1
SCC 19 after considering the judgment of
Roshan Lal Tandon (supra) has held as
under:-

"44. The key words of the
judgment are: "The recruits from both the
sources to Grade 'D' were integrated into
one class and no discrimination could
thereafter be made in favour of recruits
from one source as against the recruits
from the other source in the matter of
promotion to Grade 'C', (emphasis
supplied). By this was meant that in the
matter of promotional opportunities to
Grade 'C', no discrimination could be
made between promotees and direct
recruits by reference to the source from
which they were drawn. That is to say, if
apprentice train examiners who were
recruited directly to Grade 'D' as train
examiners formed one common class with
skilled artisans who were promoted to
Grade 'D' as train examiners, no favoured
treatment could be given to the former
merely
because
they
were
directly
recruited as train examiners and no
discrimination could be made as against
the latter merely because they were
promotees. This is the true meaning of the
observation extracted above and no more
than this can be read into the sentence
next following: "To put it differently, once
the direct recruits and promotees are
absorbed into one cadre, they form one
class and they cannot be discriminated for
the purpose of further promotion to the
higher Grade 'C'." In terms, this was just
a different way of putting what had
preceded."

19. Recently, the Apex Court in the
case of B. Manmad Reddy and others
vs. Chandra Prakash Reddy and others
- (2010) 3 SCC 314 after considering the
judgments
of
Triloki Nath Khosa
(supra)
and
Roshan
Lal
Tandon
(supra) has held as under:-

"The short question that falls for
consideration and that was argued at
considerable length before us by learned
Counsel for the parties is whether persons
drawn
from
different
sources
and
integrated into one class/cadre/category
can be classified into separate categories
for purposes of promotion on the basis of
the source from which they were drawn.
The question is, in our opinion, squarely
covered by the decisions of this Court to
4 All. Pradeep Kumar Vs. State of U.P. & Ors.
237
which we shall presently refer but before
we do so, we may briefly set out the
factual backdrop in which controversy
arises.........The integration of promotees
and direct recruits into one class would
wipe out their birth marks with the result
that the same can not be made a basis for
a
valid
classification.
Any
such
classification would amount to classifying
equals in the matter of further promotion
based solely on the source from which
they were drawn. Relying upon the
decisions of this Court, the Tribunal and
the High Court have held that inasmuch
as Note 6 to Rule 3 classifies the
promotees and direct recruits for the
purpose of future promotion, even after
their integration into one cadre the same
was discriminatory hence ultra vires of
Articles 14 and 16 of the Constitution ......
Such a classification based on the birth
mark
that
stood
obliterated
after
integration of officers coming from
different
source
into
a
common
cadre/category
would
be
wholly
unjustified and discriminatory."

20. Accordingly, when the facts of
the instant case are tested at the
touchstone of law laid down by the Apex
Court in the cases of Roshan Lal
Tandon, Triloki Nath Khosa and B.
Manmad Reddy (supra) what clearly
comes out is that a direct recruit on being
appointed in one class would loose his
birth mark and on being promoted would
not retain his original source of being a
direct recruit rather the integration of such
persons into one class i.e. Assistant Clerk
would wipe out their birth marks with the
result that any such classification for
further promotion based on the source
from which they are drawn could not be
made a basis for valid classification.
Thus, once a person was appointed on
direct recruitment basis as Assistant
Clerk, his promotion as Head Clerk, as in
the instant case, would not be treated to
be a direct recruitment rather has to be
treated as promotion. Viewed in this
manner, it is apparent that the impugned
order dated 19.08.2019 indicating that
three posts i.e. one post of Head Clerk and
two posts of Assistant Clerks were filled
in by promotees and the promotion of the
petitioner
was
made
against
direct
recruitment
basis
thus
requires
no
interference by this Court.

21. So far as the ground taken by the
learned counsel for the petitioner that no
such order could have been passed by the
Joint Director of Education, suffice to
state that this Court has itself gone in
detail into the facts of the case whereby
the Court finds that the impugned order is
justified. Consequently relegating this
matter on the basis of technicality to the
competent authority would be a useless
formality.

22. In this regard, the Apex Court in
the case of M.C.Mehta (supra) has held
as under:-

"12. On the above submissions,
the
following
points
arise
for
consideration:

(1) Whether this Court, in
exercise of powers under Article 32 (or
the High courts, generally under Article
226) is bound to declare an order of
government
passed
in
breach
of
principles of natural justice as void or
whether the court can refuse to grant
relief on the ground that the facts of the
case do not justify exercise of discretion
to interfere or because de facto prejudice
has not been shown?

(2) Whether the court is not
bound under Article 32 (or High Courts
238 INDIAN LAW REPORTS ALLAHABAD SERIES
under Article 226) to quash an order of
government on ground of breach of
natural justice if such an action will result
in the restoration of an earlier order of
government which was also passed in
breach of natural justice or which was
otherwise illegal?"

15. It is true that, whenever
there is a clear violation of principles of
natural justice, the Courts can be
approached for a declaration that the
order is void or for setting aside the same.
Here the parties have approached this
Court
because
the
orders
of
the
department were consequential to orders
of this Court. Question however is
whether the Court in exercise of its
discretion under Article 32 or Article 226
can refuse to exercise discretion on facts
or on the ground that no de facto
prejudice is established. On the facts of
this case, can this Court not take into
consideration the fact that any such
declaration
regarding
the 10.3.1999
order will restore an earlier order dated
30.7.1997 in favour of Bharat Petroleum
Corporation which has also been passed
without notice to HPCL and that if the
order dated 10.3.1999 is set aside as
being in breach of natural justice, Bharat
Petroleum will be getting two plots rather
than one for which it has no right after
the passing of the latter order of this
Court dated 7.4.98?

16. Courts are not infrequently
faced with a dilemma between breach of
the rules of natural justice and the Court's
discretion to refuse relief even though
rules of natural justice have been
breached, on the ground that no real
prejudice is caused to the affected party.

17. We shall initially refer to
two cases where discretion was exercised
not to grant relief and the first one was a
case where relief was refused even though
there was breach of natural justice. The
first one is Gadde Venkteswara Rao v.
Government of Andhra Pradesh and Ors.
MANU/SC/0020/1965 : [1966]2SCR172 .
There the Panchayat Samithi, in exercise
of its statutory powers passed a resolution
on 25.8.1960 to locate a primary health
center at Dharmajigudem. Later, it
passed another resolution on 29.5.1961 to
locate
it
at
Lingapalem.
On
a
representation
by
villagers
of
Dharmajigudem,
government
passed
orders on 7.3.1962 setting aside the
second resolution dated 29.5,1961 and
thereby restoring the earlier resolution
dated 25.8.1960. The result was that the
health
center
would
continue
at
Dharmajigudem.
Before
passing
the
orders dated 7.3.62, no notice was given
to the Panchayat Samithi. This Court
traced the said order of the government
dated 7.3.1962 to Section 62 of the Act
and if that were so, notice to the Samithi
under Section 62(1) was mandatory.
Later, upon a review petition being filed,
government passed another order on
18.4.1963 cancelling its order dated
7.3.62 and accepting the shifting of the
primary center to Lingapalem. This was
passed without notice to the villagers of
Dharmajigudem. This
order
of
the
government
was
challenged
unsuccessfully
by
the
villagers
of
Dharmajigudem in the High Court. On
appeal by the said villagers to this Court,
it was held that the latter order of the
government dated 18.4.1963 suffered
from two defects, it was issued by
Government without prior show cause
notice to the villagers of Dharmajigudem
and government had no power of review
in respect of government orders passed
under Section 62(1). But that there were
other facts which disentitled the quashing
of the order dated 18.4.63 even though it
4 All. Rajesh Chaudhary Vs. State of U.P. & Anr.
239
was passed in breach of principles of
natural justice. This Court noticed that
the setting aside of the latter order dated.
18.4.63 would restore the earlier order of
Government dated 7.3.62 which was also
passed without notice to the affected
party, namely, the Panchayat Samithi. It
would also result in the setting aside of a
valid resolution dated 29.5.61 passed by
the Panchayat Samithi. This Court
refused relief and agreed that the High
Court was right in not interfering under
Article 226 even if there was violation of
natural justice. Subba Rao, J (as he then
was) observed (p. 189) as follows:

Both
the
orders
of
the
government, namely, the order dated
March 7, 1962 and that dated April 18,
1963, were not legally passed : the
former, because it was made without
giving notice to the Panchayat Samithi
and the latter, because the Government
had no power under Section 72 of the Act
to review an Order made under Section
62 of the Act and also because it did not
give
notice
to
representatives
of
Dharmajigudem village.

His Lordship concluded as
follows:

In those circumstances, was it a case
for the High Court to interfere in its discretion
and quash the order of the government dated
April 18, 1963? If the High Court had quashed
the said order, it would have restored an illegal
order it would have given the Health center to a
village contrary to the valid resolutions passed
by the Panchayat Samithi. The High Court,
therefore, in our view, rightly refused to exercise
its extraordinary discretionary power in the
circumstances of the case.

18. The above case is clear
authority for the proposition that it is not
always necessary for the Court to strike
down an order merely because the order
has been passed against the petitioner in
breach of the natural justice. The Court
can under Article 32 or Article 226 refuse
to exercise its discretion of striking down
the order if such striking down will result
in restoration of another order passed
earlier in favour of the petitioner and
against the opposite party, in violation of
principles of natural justice or is
otherwise not in accordance with law"

22. Taking into consideration the
aforesaid
discussion,
no
case
for
interference is made out with the impugned
order. The writ petition is dismissed.
----------
(2019)12 ILR A239

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.12.2019

BEFORE
THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 32015 of 2019

Rajesh Chaudhary ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Neel Kamal Mishra

Counsel for the Respondents:
C.S.C.

A. Service Law - U.P. Government
Servant
(Discipline
and
Appeal)
Rules,1999-Rule
9-
Inquiry
report
rejected
by
disciplinary
authoritywithout assigning valid and cogent
reason-re-enquiry ordered against the
Petitioner-for the 4th time in 10 yearsorder for denovo inquiry illegal, arbitrary
and uncalled.