# Pratap Singh v. State of U.P., 1995 (1)

- **Citation:** (2011) 3 ILRA 1377
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-11-28
- **Case number:** Civil Misc. Writ Petition No. 65576 of 2011
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pratap-singh-v-state-of-u-p-1995-1-42025
- **Pages:** 6

## Headnote

1378 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Fundamental Rule-Rule 54-B-Denial of
salary during suspension period-without
giving show cause notice-Disclipinary
authority-itself
conducted
enquiry-no
question of enquiry report-so for supply
of the copies of document-in absence of
specific pleadings regarding particulars
of
documents-not
fatal-however
the
procedure provided under Rule 54-B not
followed-order of punishment denying
salary
during
suspension
periodQuashed-matter remitted back for fresh
consideration in light of observations.

Held: Para 11

Admittedly no such procedure has been
followed in the instant case and denial of
full salary has been made by the
impugned order without affording any
opportunity to the petitioner by way of
issuing a show cause notice, therefore,
the impugned order in so far as it denies
full
salary
during
the
period
of
suspension without any notice to the
petitioner is illegal and liable to be setaside.
Case law discussed:
1993 (4) SCC 727; 2007 (3) ADJ 64; 2008(8)
ADJ 243; 2008 (4) ESC 2679; Uma Shankar
Purwar Vs. The Principal Secretary, Food and
Civil Supplies, Government of U.P., Lucknow
and others (Writ Petition No. 9519 of 2007,
decided on 14.9.2009).

## Text

3 All] Prahlad Singh V. State of U.P. and others
1377
this case. It is no doubt true that a person
may have more than one firearm licence
under statute but that does not mean that the
authorities are under statutory obligation to
allow a firearm licence application as and
when submitted by a person who already
possessed a firearm, to grant the same as a
matter of right without considering other
relevant circumstances. A firearm licence is
not a matter of right but a privilege which
can be allowed in the manner provided in
statute. When a firearm licence is applied
for personal safety and security, it is
incumbent
upon
the
applicant
to
demonstrate that in case of denial of firearm
licence his life and liberty would be
endangered. In the case in hand, petitioner
already possessed a firearm licence and has
not placed anything on record to show that
the same is not sufficient for his protection
and safety. In absence of anything placed on
record by petitioner himself to justify his
application for second firearm licence, I do
not find any illegality on the part of
respondents
in
rejecting
petitioner's
application.

5. The decisions cited before this
Court only stress upon that there is no
prohibition under the statute for possessing
more than one firearm licence by a person.
Lack of prohibition and entitlement of a
person to claim more than one firearm
licence are two different things. Though
there is no prohibition and a person in a
given circumstance may be allowed more
than one firearm licence but that is not a
matter of right and not also as a matter of
course.

6. So far as judgment cited before this
Court in Commissioner of Income Tax,
Mumbai (supra) is concerned, nothing has
been shown that procedure prescribed in
law has not been followed by authorities.
The judgment of this Court in Ganesh
Chandra Bhatt (supra), cited by learned
counsel for the petitioner has been overruled
by a Full Bench of this Court in Rana
Pratap Singh Vs. State of U.P., 1995 (1)
All CJ 200, as is evident from following
extract of judgment of Full Bench:

"We are thus, again constrained to
hold that both Ganesh Chandra Bhatt's case
1993 (30) ACC 204 as also Devendra
Pratap Singh's case Civil Misc. Writ Petn.
No. 29963 of 1993, D/- 7-10-1993, do not
lay down correct law and are consequently
hereby over-ruled."

7. It is really strange that learned
counsel canvassing case of an Advocate
client has cited an authority which has
already been overruled. This is really
unfortunate.

8. However, in view of the aforesaid
discussions, I find no merit in the writ
petition. Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.11.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Civil Misc. Writ Petition No. 65576 of 2011

Prahlad Singh

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

Counsel for the Petitioner:
Sri S.N. Verma
Sri Havaldar Verma

Counsel for the Respondents:
Sri S. Shekhar
C.S.C.
1378 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Fundamental Rule-Rule 54-B-Denial of
salary during suspension period-without
giving show cause notice-Disclipinary
authority-itself
conducted
enquiry-no
question of enquiry report-so for supply
of the copies of document-in absence of
specific pleadings regarding particulars
of
documents-not
fatal-however
the
procedure provided under Rule 54-B not
followed-order of punishment denying
salary
during
suspension
periodQuashed-matter remitted back for fresh
consideration in light of observations.

Held: Para 11

Admittedly no such procedure has been
followed in the instant case and denial of
full salary has been made by the
impugned order without affording any
opportunity to the petitioner by way of
issuing a show cause notice, therefore,
the impugned order in so far as it denies
full
salary
during
the
period
of
suspension without any notice to the
petitioner is illegal and liable to be setaside.
Case law discussed:
1993 (4) SCC 727; 2007 (3) ADJ 64; 2008(8)
ADJ 243; 2008 (4) ESC 2679; Uma Shankar
Purwar Vs. The Principal Secretary, Food and
Civil Supplies, Government of U.P., Lucknow
and others (Writ Petition No. 9519 of 2007,
decided on 14.9.2009).

(Delivered by Hon'ble Sudhir Agarwal,J. )

1. Heard Sri Himanshu, Advocate
holding the brief of Sri Havaldar Verma,
learned counsel for the petitioner, learned
Standing Counsel for the respondent no.1
and Sri S. Shekhar for the respondents no.2
to 4.

2. Considering the pure legal
submission advanced by learned counsel for
the petitioner, learned Standing Counsel
states that he does not propose to file any
counter affidavit and the writ petition may
be disposed of finally at this stage under the
Rules of this Court. I proceed accordingly.

3. Learned counsel for the petitioner
submitted that enquiry was conducted by
the appointing authority himself and he had
not appointed any enquiry officer. However,
he could not show any provision or
otherwise law that appointing authority is
not competent to conduct enquiry himself
but has to appoint enquiry officer. He
further contended that along with order of
punishment of stoppage of two increments
with cumulative effect, the respondents
have illegally denied the full salary to the
petitioner for the period he remain under
suspension. Inasmuch as it is not one of the
punishment prescribed in the rule and in
case it is referable to Fundamental Rule 54B, such order forfeiting salary during the
period of suspension cannot be passed
without issuing a show cause notice in this
regard and giving an opportunity of hearing
to the petitioner.

4. Per contra learned counsel for the
respondents stated that in absence of any
provision the disciplinary authority himself
can conduct enquiry or assign the same to
any person lower in rank to the disciplinary
authority as an Enquiry Officer and get the
enquiry conducted through him. He said
that there is no illegality in this regard. He
further contended that so far as denial of full
salary during the period of suspension is
concerned, the application of Fundamental
Rule though is admitted but it is contended
that in the same order not only the
punishment can be imposed but an order
regarding full salary during the period of
suspension can also be passed and hence the
impugned order warrants no interference.

5. So far as the first submission is
concerned, I am clearly of the view that a
3 All] Prahlad Singh V. State of U.P. and others
1379
disciplinary authority himself can conduct
the enquiry and there is no bar. The power
imposing punishment obviously is vested in
the disciplinary authority. He can exercise
this power after giving due opportunity of
hearing to delinquent employee. The
opportunity includes departmental enquiry.
No principles of law which precedent bar
such an enquiry by the disciplinary
authority himself. On the contrary when
disciplinary authority himself has conducted
enquiry, the disciplinary proceedings can be
concluded a little bit expeditiously for the
reason that in such a case the disciplinary
authority is not supposed to prepare any
enquiry report but after concluding the oral
enquiry he can record its finding and
impose punishment straight with. I am
supporting in taking this view from the
Apex
Court
decision
in
Managing
Director,
ECIL
Hyderabad
Vs.
B.
Karunakar, 1993 (4) SCC 727.

6. This Court in Laxmi Narain
Tripathi Vs. Deputy Director (Fisheries),
Basti and others, 2007 (3) ADJ 64 referring
to Rule 7 of the Government Servant
(Discipline and Appeal) Rules, 1999 has
observed that disciplinary authority may
himself enquire into the charges or appoint
an authority subordinate to him as Enquiry
Officer to enquire into the charges. The
mere fact that disciplinary authority himself
has conducted the enquiry, would not vitiate
the enquiry unless shown to be prohibited
by some Statute which is not the case in
hand.

7. The second submission is that
documents relied upon, were not supplied
along with charge-sheet. The documents
relied upon by department can be made
available at any stage till the departmental
enquiry is completed. It is not the case of
petitioner that documents were not available
to him at any point of time. There is no
pleading in the entire writ petition. Unless it
is shown that requisite documents relied
upon in support of the charges were not
supplied at any point of time nor the
delinquent employee was allowed to inspect
the same at any stage; it cannot be said that
there is any violation of Principles of
Natural
Justice
in
the
disciplinary
proceedings.

8. The last submission is that
impugned
order
imposes,
besides
punishment of stoppage of two increments
with cumulative effect, another punishment
of non-payment of full salary for the period
of suspension though it is not the
punishment prescribed in Rules and has
been included in the impugned order of
punishment wholly illegally.

9.

Learned
counsel
for
the
Corporation on the contrary submitted that
for this purpose Fundamental Rules have
been adopted by the Corporation and
Fundamental Rule 54-B provides that
competent authority can always deny full
salary to the delinquent employee when he
is reinstated after suspension and can also
impose punishment.

10. The Fundamental Rule 54-B
clearly contemplates a show cause notice
separately where the disciplinary authority
is of the view that the delinquent employee
should not be paid full salary for the period
he was under suspension. The Fundamental
Rule 54-B reads as under:-

"54-B. (1) When a Government servant
who has been suspended is reinstated or
would have been so reinstated but for his
retirement on superannuation while under
suspension, the authority competent to
1380 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
order reinstatement shall consider and
make a specific order-

(a) regarding the pay and allowance to
be paid to the Government servant or the
period
of
suspension
ending
with
reinstatement
or
the
date
of
his
reinstatement on superannuation as the
case may be; and

(b) whether or not the said period shall
be treated as a period spent on duty.

(2)
Notwithstanding
anything
contained in Rule 53, where a Government
servant under suspension dies before the
disciplinary or court proceeding instituted
against him are concluded, the period
between the date of suspension and the date
of death shall be treated as duty for all
purposes and his family shall be paid the
full pay and allowances for that period to
which he would have been entitled had he
not been suspended, subject to adjustment
in respect of subsistence allowance already
paid.

(3) Where the authority competent to
order reinstatement is of the opinion that
the suspension was wholly unjustified, the
Government servant shall, subject to the
provisions of sub-rule(8), to be paid the full
pay and allowances to which he would have
been entitled, had he not been suspended:

Provided that where such authority is
of the opinion that the termination of the
proceeding
instituted
against
the
Government servant had been delayed due
to reasons directly attributable to the
Government servant, it may, after giving
him
an
opportunity
to
make
his
representation within sixty days from the
date on which the communication in this
regard is served on him and after
considering the representation, if any,
submitted by him, direct, for reasons to be
recorded in writing that the Government
servant shall be paid for the period of such
delay only such amount (not being the
whole) of such pay and allowances as it
may determine.

(4) In a case falling under sub-rule (3)
the period of suspension shall be treated as
a period spent on duty for all purposes.

(5) In cases other than those falling
under
sub-rules
(2)
and
(3),
the
Government servant shall subject to the
provisions of sub-rules(8) and (9), be paid
such amount (not being the whole) of the
pay and allowances to which he would have
been entitled had he not been suspended, as
the competent authority may determine,
after giving notice to the Government
servant of the quantum proposed and after
considering the representation, if any,
submitted by him in that connection within
such period (which in no case shall exceed
sixty days from the date on which the notice
has been served) as may be specified in the
notice.

(6) Where suspension is revoked
pending finalisation of the disciplinary or
court proceedings, any order passed under
sub-rule(1) before the conclusion of the
proceedings
against
the
Government
servant, shall be reviewed on its own
motion
after
the
conclusion
of
the
proceedings by the authority mentioned in
sub-rule(1), who shall make an order
according to the provisions of sub-rule(3)
or sub-rule (5), as the case may be.

(7) In a case falling under sub-rule(5)
the period of suspension shall not be treated
as a period spent on duty unless the
competent authority specifically directs that
3 All] Prahlad Singh V. State of U.P. and others
1381
it shall be so treated for any specified
purposes:

Provided that if the Government
servant desires, such authority may order
that the period of suspension shall be
converted into leave of any kind due and
admissible to the Government servant.

NOTE- The order of the competent
authority under the proceeding proviso
shall be absolute and no higher sanction
shall be necessary for the grant of-

(a) Extraordinary leave in excess of
three months in the case of temporary
Government servant; and

(b) Leave of any kind in excess of five
years in the case of permanent Government
servant.

(8) The payment of allowances under
sub-rule(2), sub-rule (3) or sub-rule(5) shall
be subject to all other conditions under
which such allowances are admissible.

(9) The amount determined under the
proviso to sub-rule(3) or sub-rule(5) shall
not be less than the subsistence allowance
and other allowances admissible under
Rule 53.

(10) Any payment made under this Rule
to Government servant on his reinstatement
shall be subject to adjustment of the amount,
if any earned by him through an employment
during the period between the date of
suspension and the date of reinstatement or,
the date of retirement on superannuation
while
under
suspension.
Where
the
emoluments admissible under this Rule are
equal to or less than those during the
employment elsewhere, nothing shall be paid
to the Government servant.

NOTE- Where the Government servant
does not report for duty within reasonable
time after the issue of the order of
reinstatement after suspension, on pay and
allowances will be paid to him for such
period till he actually takes over charge."

11. Admittedly no such procedure has
been followed in the instant case and denial
of full salary has been made by the impugned
order without affording any opportunity to
the petitioner by way of issuing a show cause
notice, therefore, the impugned order in so
far as it denies full salary during the period of
suspension without any notice to the
petitioner is illegal and liable to be set-aside.

12. Similar view has been taken by this
Court in Akhilesh Kumar Awasthi Vs. State
of U.P. and others, 2008(8) ADJ 243 equal
to 2008(4) ESC 2679 and also followed in
Uma Shankar Purwar Vs. The Principal
Secretary,
Food
and
Civil
Supplies,
Government of U.P., Lucknow and others
(Writ Petition No.9519 of 2007, decided on
14.9.2009).

13. In view of above exposition of law
while I uphold the impugned order of
punishment in so far as it imposes
punishment of stoppage of two increments
with cumulative effect, the impugned order
dated 05.02.2004, in so far as it deny full
salary to the petitioner for the period of
suspension,
is
hereby
quashed.
The
competent authority is directed to pass a
fresh order after issuing proper show cause
notice to the petitioner and giving an
opportunity of submitting his representation
on the question of denial of full salary and
allowances for the period of suspension. It

14. The writ petition is allowed in the
manner as aforesaid.
---------
1382 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.11.2011

BEFORE
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No. 59566 of 2011

Mithai Lal and others
 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Shashi Nandan
Sri Abhishek Srivastava

Counsel for the Respondents:
Sri A.K. Singh
Sri R.A. Akhtar
C.S.C.

Right of Children to free and compulsory
Education Act, 2009 Section 23 (1)-
readwith Section 2 (ii) of National Council
for teachers Education act-Eligibility for
Appointment as teachers in class I to VIIIa teacher having two years teaching
experience
with
2
years
Degree
by
distance mode-not required to qualify
T.E.T.- such direction to appear in T.E.T.-
can not be granted.

Held: Para 18

It is, therefore, clear that the candidates
who have to their credit at least two years
teaching experience in a government or
government
recognized
Primary
Elementary Schools are granted admission
to the aforesaid two years course by
Distance Mode. Persons who have been
appointed as teachers are not required to
under
take
the
U.P.-TET
under
the
notification dated 23rd August, 2010.

(Delivered by Hon'ble Dilip Gupta, J. )

1. The petitioners, who have obtained
the B.Ed. two years Degree by Distance
Mode from U.P. Rajshree Tandon Open
University have filed this petition for a
direction upon the respondents to consider it
as a valid qualification for appearing at the
U.P. Teachers Eligibility Test (hereinafter
referred to as the 'U.P.-TET') scheduled to
commence from 13th November, 2011.

2. It is stated that in exercise of the
powers conferred by Section 23(1) of the
Right of Children to Free and Compulsory
Education Act, 2009 (hereinafter referred to
as the 'Act') and in pursuance of the
notification dated 31st March, 2010 issued
by the Government of India, the National
Council for Teachers Education (hereinafter
referred to as the 'NCTE') issued the
notification dated 23rd August, 2010 laying
down the minimum qualifications for a
person to be eligible for appointment as a
teacher in Classes I to VIII in a School
referred to in Section 2(n) of the Act, which
amongst others, provides that the person
should pass the TET to be conducted by the
appropriate Government in accordance with
the Guidelines framed by the NCTE for the
purpose. The Board of High School and
Intermediate Education (hereinafter referred
to as the 'Intermediate Education Board'),
which has been authorised by the State
Government to hold such a test, issued the
advertisement dated 22nd September, 2011
inviting applications from the eligible
candidates for appearing in the UP-TET but
persons who have obtained B.Ed. Degree in
two years by distance mode have not been
permitted to appear in the test. It is,
therefore, asserted that the petitioners, who
have obtained B.Ed. Degree in two years
through Distance Mode stand excluded
from appointment as teachers in Classes I to
VIII since a person who has cleared the
TET is only considered eligible for
appointment.