# Prakash Chandra Agarwal v. State of U.P. & Anr

- **Citation:** (2022) 5 ILRA 982
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-04
- **Case number:** WRIT A No. 2555 of 2022
- **Bench:** Vivek Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prakash-chandra-agarwal-v-state-of-u-p-anr-48617
- **Pages:** 4

## Headnote

A. Service Law - Disciplinary Inquiry - U.P.
Government
Servants
(Discipline
and
Appeal) Rules, 1999 - Rule 7 - It is not
merely the duty of the inquiry officer to
comply with the Rule-7 but also the duty
of the punishing authority, while passing
order of punishment, to ensure that the
inquiry is conducted as per the procedure
prescribed. (Para 6)

In the present case, admittedly, there is
violation of Rule-7 as the documents relied upon
by the inquiry officer were never provided to the
petitioner nor the inquiry is conducted following
the procedure prescribed under Rule-7, i.e., by
summoning the witnesses of the department,
giving chance of cross examination, providing
5 All. Prakash Chandra Agarwal Vs. State of U.P. & Anr.
983
opportunity
to
the
delinquent
employee/petitioner to call his witnesses,
therefore,
impugned
order
dated
11.04.2022 cannot stand and is set aside.
(Para 11)

B. The power exercised by the
inquiry officers are quasi judicial in
nature and for the same a judicially
trained mind is required. The State
Government is already having a Judicial
Training
and
Research
Institute
(J.T.R.I.)
which
trains/educates
the
officers of the State Government on the
legal compliances/procedures. (Para 8)

Director, J.T.R.I., Lucknow is directed
to forthwith prepare an appropriate
program for training of the inquiry
officers as well as for training of the
disciplinary authorities so that such
mistakes are not repeated. (Para 9)

Writ petition allowed. (E-4)

Precedent followed:

## Text

982 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased employee. One of the objects of
such provision is to enable a dependent
who is otherwise minor, may be slightly
below the age of majority, so that he or she
may not be deprived of such compassionate
appointment and may not have to undergo
the consequential financial deprivation.
Therefore, the provision in para 3(5) does
not appear to be reasonable by any
standards.

9. Considering the aforesaid, the
provision contained in para no.3(5) of the
aforesaid Government Order is patently
unreasonable and hit by Article 14 of the
Constitution of India. However, instead of
quashing the said provision, the ends of
justice would suffice if the words "(5) ऐसे
मृतक आभश्रत जो, सम्बन्धित कमशचारी की मृत्यु
के भदनाूंक को मृतक आभश्रत के रुप में
सेवायोजन के भलये न्य नतम र्ैभक्षक अहशता
इण्टरमीभडएट अथवा उससे अभधक रखते होूं
..." are read down to mean that the
dependent of the deceased employee who
applies for compassionate appointment
should possess the minimum educational
qualification prescribed for the post in
question on the date of submission of such
application or on the date of being
considered for selection but within the time
limit prescribed by para 3(8) of the said
Government
Order
dated
04.09.2000,
otherwise the provision would not stand the
test of Article 14 of the Constitution of
India. This will protect it from being
declared unconstitutional. The Government
Order shall now be read, understood and
applied accordingly. In view of the above
clarification of law on the subject, the
impugned orders dated 04.12.2019 and
27.08,2020 are quashed. The claim of the
petitioner shall now be reconsidered for
compassionate appointment for a clerical
post in the light of the aforesaid, subject to
availability of vacancy and the decision
taken shall be communicated to the
petitioner within three months. If there is
no vacancy on a clerical post then the claim
of the petitioner shall be considered for
compassionate
appointment
against
a
Class-IV post.

10. Accordingly, the writ petition is
allowed in the aforesaid terms.
----------
(2022)05ILR A982
APPELLATE JURISDICTION
CIVIL SIDE
DATED LUCKNOW 07.05.2022

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

WRIT A No. 2555 of 2022

Prakash Chandra Agarwal ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant
Sri Gaurav Mehrotra, Sri Akber Ahmed

Counsel for the Respondents:
C.S.C.

A. Service Law - Disciplinary Inquiry - U.P.
Government
Servants
(Discipline
and
Appeal) Rules, 1999 - Rule 7 - It is not
merely the duty of the inquiry officer to
comply with the Rule-7 but also the duty
of the punishing authority, while passing
order of punishment, to ensure that the
inquiry is conducted as per the procedure
prescribed. (Para 6)

In the present case, admittedly, there is
violation of Rule-7 as the documents relied upon
by the inquiry officer were never provided to the
petitioner nor the inquiry is conducted following
the procedure prescribed under Rule-7, i.e., by
summoning the witnesses of the department,
giving chance of cross examination, providing
5 All. Prakash Chandra Agarwal Vs. State of U.P. & Anr.
983
opportunity
to
the
delinquent
employee/petitioner to call his witnesses,
therefore,
impugned
order
dated
11.04.2022 cannot stand and is set aside.
(Para 11)

B. The power exercised by the
inquiry officers are quasi judicial in
nature and for the same a judicially
trained mind is required. The State
Government is already having a Judicial
Training
and
Research
Institute
(J.T.R.I.)
which
trains/educates
the
officers of the State Government on the
legal compliances/procedures. (Para 8)

Director, J.T.R.I., Lucknow is directed
to forthwith prepare an appropriate
program for training of the inquiry
officers as well as for training of the
disciplinary authorities so that such
mistakes are not repeated. (Para 9)

Writ petition allowed. (E-4)

Precedent followed:

1. St. of U.P. & ors. Vs Vijay Anand Tiwari,
Order dated 13.01.2021, passed in Writ-A No.
12110 of 2020 (Para 7)

Present
petition
challenges
the
punishment
order
dated
11.04.2022,
passed
by
Additional
Chief
Secretary/Principal Secretary, Secretariat
Administration Department, Lucknow.

(Delivered by Hon'ble Vivek Chaudhary, J.)

1. Present writ petition is filed by the
petitioner challenging his punishment order
dated 11.04.2022 passed by Additional
Chief
Secretary/Principal
Secretary,
Secretariat
Administration
Department,
Lucknow (respondent no.2).

2. By the impugned order, petitioner
is given a punishment of censure entry and
reversion to the post of Section Officer
from the post of Under-Secretary.

3. At the very outset, learned counsel
for petitioner submits that the inquiry was
conducted
by
the
Special
Secretary,
Medical Education Services, U.P., who
submitted her report on 25.08.2021. He
submits that in the present case, the inquiry
officer was never provided the documents
to which she had relied upon in the inquiry.
The said documents were summoned by the
inquiry officer during the conduct of the
inquiry and were also perused by her.
However,
neither
copy
of
the
said
documents were provided to the petitioner
nor the same were permitted to be perused
by the petitioner. Learned counsel for
petitioner further submits that a bare
perusal of the report shows that the inquiry
was conducted in violation of Rule-7 of the
U.P. Government Servants (Discipline and
Appeal) Rules, 1999 (hereinafter referred
to as 'Rules of 1999'), as no date, time and
place was fixed in the inquiry.

4. I have perused the inquiry report as
well as the impugned punishment order. A
bare perusal of the same shows that the
inquiry officer has, in fact, not merely
failed to follow the procedure provided by
Rule-7 of Rules of 1999 but has also placed
burden upon the delinquent employee to
prove that he is not guilty. In the first line
of discussion, the inquiry officer states,
that, delinquent employee through his reply
to the charge-sheet/statements could not
submit any evidence which would prove
that the delinquent employee is wrongly
charged.

5. In the present case, the Additional
Chief Secretary was summoned along with
the record. Today he is present in Court
along with the record and with his
assistance as well as assistance of the
counsels for parties, record is perused.
Learned Standing Counsel also could not
984 INDIAN LAW REPORTS ALLAHABAD SERIES
show from the record of the case that the
procedure as prescribed under Rule-7 of
Rules of 1999 is followed in conducting the
inquiry and any date, time and place was
fixed for evidence or evidence relied
upon/summoned was provided to the
petitioner.

6. Though the matter is simple as it is
to be remanded back, but, in large number
of cases filed before this Court, it is found
that the inquiry with regard to major
penalty is conducted in violation of Rule-7
of Rules of 1999. The present case is a
glaring example of the same. Inquiry
officer is a Special Secretary and the
punishing authority is a Principal Secretary.
Still a glaring error is committed in conduct
of the inquiry by the inquiry officer and in
failure to check the same by the punishing
authority before punishment order was
issued. It is not merely the duty of the
inquiry officer to comply with the Rule-7
but also the duty of the punishing authority,
while passing order of punishment, to
ensure that the inquiry is conducted as per
the procedure prescribed.

7. Such mistakes in large numbers are
occurring for quite some time now in the
State. The State Government as far back as
on
22.04.2015
issued
a
detailed
government order explaining at length the
manner in which inquiry with regard to
minor punishment or major punishment
should be conducted. The government
order explains at length what is already
prescribed in Rule-7. When the inquiries
were still not being conducted in proper
manner, again under order of this Court
dated
13.01.2021
passed
in
Writ-A
No.12110 of 2020; 'State of U.P. & Others
Vs. Vijay Anand Tiwari', a Government
Order dated 10.02.2021 was issued by the
State Government for compliance of Rule7. Despite two aforesaid government
orders, the inquiries are still not conducted
in a proper manner. It is sad to note that the
both the aforesaid government orders are
also not being complied with by the
officials. It is also noted that in large
number of cases, after remand when the
inquiry
is
re-conducted,
the
same
procedural error is again made and again
the inquiry report is submitted without
following the due procedure as per Rule-7.
This is also putting burden of unnecessary
litigation upon this Court. It is the duty of
the inquiry officer as well as the punishing
authority to ensure compliance of Rule-7.

8. Since these incidences are abundant
in number, therefore, this Court finds it
necessary now to ensure that every inquiry
officer, who at present is conducting an
inquiry or appointed to conduct any inquiry
in future, is provided proper training with
regard to the manner and procedure for
conducting the inquiry. Similarly the
disciplinary authorities are also required to
go through a training with regard to the
manner in which the inquiries are to be
conducted and, thereafter, punishment
orders are to be passed. It goes without
saying that the power exercised by the
inquiry officers are quasi judicial in nature
and for the same a judicially trained mind
is required. The State Government is
already having a Judicial Training and
Research
Institute
(J.T.R.I.)
which
trains/educates the officers of the State
Government
on
the
legal
compliances/procedures.

9. Therefore, Director, J.T.R.I.,
Lucknow is directed to forthwith prepare
an appropriate program for training of the
inquiry officers as well as for training of
the disciplinary authorities so that such
mistakes are not repeated. The J.T.R.I shall
5 All. Smt. Kavita Sonkar Vs. State of U.P. & Ors.
985
also issue an appropriate identifiable
certificate to every officer after he/she
completes the training session. The relevant
details
of
the
said
training
session/certificates shall be referred by the
officer concerned in every inquiry report
submitted by him/her or punishment order
passed. All the officers who are conducting
any inquiry at present in the State shall
attend the training without any delay and
such inquiry officers shall conclude their
inquiries only after their training is
completed.
Similarly
the
punishing
authority shall also go through the required
training before passing any punishment
order
and
also
refer
to
their
session/certificate. It is further directed that
no inquiry officer in future shall be
appointed for departmental inquiry who has
not received the training from the J.T.R.I.
The State government shall bear the cost of
the aforesaid training at J.T.R.I. at its own
cost.

10. Senior Registrar of this Court
shall forthwith send a copy of this order to
the Chief Secretary of the State of U.P. as
well as Director, J.T.R.I., Lucknow for its
compliance.

11. Since, in the present case,
admittedly, there is violation of Rule-7 as
the documents relied upon by the inquiry
officer
were
never
provided
to
the
petitioner nor the inquiry is conducted
following the procedure prescribed under
Rule-7, i.e., by summoning the witnesses of
the department, giving chance of cross
examination, providing opportunity to the
delinquent employee/petitioner to call his
witnesses, therefore, impugned order dated
11.04.2022 cannot stand and is set aside.

12. The matter is remanded back to
respondent no.2 for conducting fresh
inquiry after following proper procedure as
prescribed under Rule-7.

13. With the aforesaid, the writ
petition is allowed.
----------
(2022)05ILR A985
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.03.2022

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Writ A No. 959 of 2022

Smt. Kavita Sonkar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Babu Lal Ram, Sri Ankit Sonker

Counsel for the Respondents:
C.S.C.,
Sri
M.N.
Singh,
Sri
V.K.S.
Raghuvanshi

A.
Service
Law
-
Appointment
-
Qualification/Eligibility - The essential
qualifications for appointment to a post
are for the employer to decide. The
employer may prescribe additional or
desirable
qualifications,
including
any
grant of preference. It is the employer who is
best suited to decide the requirements a
candidate must possess according to the needs
of the employer and the nature of work. The
court cannot lay down the conditions of
eligibility, much less can it delve into the
issue w.r.t. desirable qualifications being
at par with the essential eligibility by an
interpretive
re-writing
of
the
advertisement. Questions of equivalence
will also fall outside the domain of judicial
review. (Para 7, 8, 9)

If the language of the advertisement and the
rules are clear, the court cannot sit in judgment