# Priyanka Dubey v. State of U.P. & Ors. 402 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2024) 7 ILRA 401
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-10
- **Case number:** Writ C No. 1007064 of 2015
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/priyanka-dubey-v-state-of-u-p-ors-402-indian-law-reports-allahabad-series-52272
- **Pages:** 7

## Headnote

A. Constitution of India,1950 - Article 226
- Inquiry - Allegation of transplantation of
answer sheets - Mere possibility cannot
substitute
a
definitive
conclusion
regarding the culpability in the alleged
transplantation of answer sheets. Mere
passing of an adverse order during an
inquiry is insufficient; it is essential and
mandatory to communicate such an order
to the delinquent at the conclusion of the
inquiry proceedings. Non-communication
renders the order non-est and nonexistent, and no action can be sustained
based on such an uncommunicated order.
The callous and negligent actions of
Lucknow University caused unnecessary
delay and inconvenience to the petitioner,
warranting compensatory costs.

B. Petitioner, a B.Sc. 3rd-year student,
appeared for her examinations in 2009.
Her result was withheld due to alleged
manipulation of answer sheets. A cryptic
show-cause notice was issued without
providing copies of the incriminating
answer sheets. Despite the petitioner
denying the allegations, the University
failed to communicate any decision and
subsequently cancelled her examination
based on presumptions. After a lapse of
five
years,
she
was
offered
the
opportunity to reappear for the 2014-15
examinations. Held: University's actions,
based on presumptions and without any
definitive finding of misconduct, violated
the principles of natural justice. Enquiry
committee
failed
to
establish
the
petitioner's culpability in transplanting
answer sheets. Non-communication of
adverse orders rendered such orders nonest and non-existent. University was held
responsible for ruining the petitioner's
academic career, and costs of ₹2,00,000
was
imposed
on
the
University
to
compensate for the delay inconvenience
caused to the petitioner.(Para 11, 22)

Allowed. (E-5)

List of Cases cited:

## Text

7 All. Priyanka Dubey Vs. State of U.P. & Ors.
401
held that the High Court can refuse to
exercise
its
extraordinary
jurisdiction
enshrined
under
Article
226
of
the
Constitution of India in the cases where such
exercise
of
jurisdiction
may
lead
to
perpetuating an illegality.

31. The relevant paragraphs of the
judgment rendered by the Hon'ble Supreme
Court in the case of Chandra Singh (supra)
are extracted as under :-

 " 42. In any event, even assuming
that there is some force in the contention of
the appellants, this Court will be justified in
following
Taherakhatoon
vs.
Salambin
Mohammad (1999) 2 SCC 635 wherein this
Court declared that even if the appellants
contention is right in law having regard to
the overall circumstances of the case, this
Court would be justified in declining to grant
relief under Article 136 while declaring the
law in favour of the appellants.

 43. Issuance of a Writ of Certiorari
is a discretionary remedy. [See Champalal
Binani vs. CIT, AIR 1970 SC 645]. The High
Court and consequently this Court while
exercising its extra-ordinary jurisdiction under
Articles 226 or 32 of the Constitution of India
may not strike down an illegal order although it
would be lawful to do so. In a given case, the
High Court or this Court may refuse to extend
the benefit of a discretionary relief to the
applicant. Furthermore, this Court exercised its
discretionary jurisdiction under Article 136 of
the Constitution of India which need not be
exercised in a case where the impugned
judgment is found to be erroneous if by reason
thereof substantial justice is being done. [See
S.D.S. Shipping (P) Ltd. vs. Jay Container
Services Co. (P) Ltd. & Ors. [2003 (4) Supreme
44]. Such a relief can be denied, inter alia,
when it would be opposed to public policy or in
a case where quashing of an illegal order
would revive another illegal one. This Court
also in exercise of its jurisdiction under Article
142 of the Constitution of India is entitled to
pass such order which will do complete justice
to the parties."

32. This court is of the categorical
view that the co-ordinate Bench of this Court
had already considered the petitioner's case in
detail and vide judgment and order dated
23.02.2011 rendered in Civil Misc. Writ
Petition No. 11073 of 2011 had affirmed that
the petitioner is a rank trespasser in respect of
Manav Vikas Shiksha Samiti, Kanpur Nagar
and the said judgment had attained finality,
therefore, even if the impugned order dated
24.08.2015 may be without jurisdiction, this
Court in exercise of its extraordinary
jurisdiction enshrined under Article 226 of
the Constitution of India should not interfere
in the said order as the same will lead to
perpetuating
an
illegality
and
the
consequence of setting a aside the order dated
24.08.2015 would give leverage to the
petitioner to raise his claim before the
concerned Deputy Registrar even though the
co-ordinate Bench of this Court had already
rejected the petitioner's claim.

33. In view of the aforesaid
reasons, this writ petition lacks merit and
accordingly is dismissed.
---------
(2024) 7 ILRA 401
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.07.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ C No. 1007064 of 2015

Priyanka Dubey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
402 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Sri
Avinash
Chandra,
Sri
Sukumar
Srivastava

Counsel for the Respondents:
C.S.C., Savitra Vardhan Singh

A. Constitution of India,1950 - Article 226
- Inquiry - Allegation of transplantation of
answer sheets - Mere possibility cannot
substitute
a
definitive
conclusion
regarding the culpability in the alleged
transplantation of answer sheets. Mere
passing of an adverse order during an
inquiry is insufficient; it is essential and
mandatory to communicate such an order
to the delinquent at the conclusion of the
inquiry proceedings. Non-communication
renders the order non-est and nonexistent, and no action can be sustained
based on such an uncommunicated order.
The callous and negligent actions of
Lucknow University caused unnecessary
delay and inconvenience to the petitioner,
warranting compensatory costs.

B. Petitioner, a B.Sc. 3rd-year student,
appeared for her examinations in 2009.
Her result was withheld due to alleged
manipulation of answer sheets. A cryptic
show-cause notice was issued without
providing copies of the incriminating
answer sheets. Despite the petitioner
denying the allegations, the University
failed to communicate any decision and
subsequently cancelled her examination
based on presumptions. After a lapse of
five
years,
she
was
offered
the
opportunity to reappear for the 2014-15
examinations. Held: University's actions,
based on presumptions and without any
definitive finding of misconduct, violated
the principles of natural justice. Enquiry
committee
failed
to
establish
the
petitioner's culpability in transplanting
answer sheets. Non-communication of
adverse orders rendered such orders nonest and non-existent. University was held
responsible for ruining the petitioner's
academic career, and costs of ₹2,00,000
was
imposed
on
the
University
to
compensate for the delay inconvenience
caused to the petitioner.(Para 11, 22)

Allowed. (E-5)

List of Cases cited:

1. Bachhittar Singh Vs St. of Punj. & anr., AIR
1963 SC 395

2. St. of Punj. & anr.Vs Resham Singh & ors.,
AIR 1966 SC 1313

3. Laxminarayan R. Bhattad Vs St. of Mah.,
(2003) 5 SCC 413

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Shri Sidharth Nath Singh,
Advocate holding brief of Shri Avinash
Chandra, learned counsel on behalf of the
petitioner and learned Standing Counsel on
behalf of the respondent no.1 and Shri
Savitra Vardhan Singh, appearing on behalf
of the Lucknow University- respondent no.
2 to 5.

2. The present case clearly
demonstrates
callous
and
negligence
attitude and actions of the Lucknow
University with regard to the petitioner,
who was a student of B.Sc. 3rd year and
had appeared in the examinations in 2009.
The result of the said examinations were
declared, but the result of the petitioner was
withheld. Subsequently, the petitioner came
to know that the result has been withheld
on
account
of
certain
allegations
attributable to the petitioner, according to
which the answersheets were manipulated
in six subjects.

3. Despite repeated attempts made
by the petitioner, no order was passed by
the respondent-University either scoring
her answersheets in the aforesaid subjects
nor passing any order which may indicate
7 All. Priyanka Dubey Vs. State of U.P. & Ors.
403
her misconduct due to which the said
examination was cancelled. No order was
passed by the Lucknow University till a
show cause notice was given to the
petitioner for the first time on 20.02.2010.
In the said show cause notice dated
20.2.2010 passed by the office of the
Controller of Examination the petitioner
was asked to respond to the allegations
with regard to the subjects which were
coded as S-648, S-649, S-650, S-671, S672 and S-673 the answersheets were
transplanted and the petitioner was directed
to respond to the said allegations within a
period of 15 days. The petitioner duly
responded to the said show cause notice by
a reply dated 12.03.2010 and denied the
said allegations and further stated that she
was never made aware of the aforesaid
allegations. After submitting a reply on
12.03.2010, the respondent University did
not communicate any decision in pursuance
of the show cause notice given to the
petitioner.

4. It seems that the Lucknow
University on receiving the response of the
petitioner had constituted an Examination
Committee to take a decision with regard to
the petitioner. It has been informed that the
said committee came to a decision on
21.05.2012 to the effect that the petitioner
be permitted to appear as an exempted
candidate in the year 2012-13 and also took
a decision that her examinations in the year
2009 stood cancelled. There is no dispute
that the decision of the examination
committee dated 21.05.2012 was never
communicate to the petitioner and it is on
account of the said fact that the petitioner
could
not
even
appear
in
2012-13
examination. It seems that respondent
University realised their mistake that the
order of the Examination Committee dated
21.05.2012 was never communicated to the
petitioner, and in the meanwhile the
petitioner had approached this Court by
filing a writ petition being Writ Petition
No.6992 (MS) of 2014. It is during hearing
of the said writ petition, Counsel for the
Lucknow University informed the Court
that a decision in this regard has been taken
by the University on 15.11.2014. When the
counsel for the petitioner was informed
about the fresh decision having been taken
by the Lucknow University, he prayed for
dismissal of the the writ petition as
withdrawn with a liberty to file afresh
petition assailing the decision of the
Lucknow University. It is the subsequent
decision dated 15.11.2014 passed by the
Examination Committee that the present
writ petition has been filed by the
petitioner.

5. A perusal of the order dated
15.11.2014 would clearly indicates that
there is no finding the petitioner had in fact
transplanted the answersheets and was
guilty
of
misconduct.
For
sake
of
convenience, paragraph No.1(v) of the said
order is quoted herein below:-

 ^^ijh{kk lfefr dh cSBd fnukad 21-052012 dks ch0,l0lh0 r`rh; o"kZ dh Nk=k fiz;adk nqcs
dh o"kZ 2008&09 ds izdj.k ds lEcU/k esa lfefr }kjk
xgu fopkj foe'kZ fd;k x;k rFkk loZlEefr ls ;g
fu.kZ; iznku fd;k x;k fd lfefr }kjk xfBr
milfefr dh fjiksZV esa ;g Li"V fd;k x;k gS fd
,slk izrhr gksrk gS fd mRrj iqfLfrdkvksa esa izR;ksjki.k
fd;k x;k gS ijUrq izR;kjksi.k fdl Lrj ij gqvk gS
bldh iqf"V ugha gks ldh gSA vr% lfefr }kjk
loZlfEefr ls ;g fu.kZ; iznku fd;k x;k fd Nk=k
fiz;adk nqcs dh o"kZ 2008&09 dh ijh{kk fujLr dh
tkrh gS rFkk ;fn Nk=k iqu% ch0,l0lh0 r`rh; o"kZ
dh ijh{kk esa lfEefyr gksuk pkgrh gS rks mls o"kZ
2012&13 dh ijh{kk esa ,XtEVsM vH;FkhZ ds :i esa
lfEefyr djk fn;k tk,A^^

6. The aforesaid order clearly
indicates that the Committee was of the
404 INDIAN LAW REPORTS ALLAHABAD SERIES
view that there was possibility of the
answersheets having been transplanted but
no fact leading to such presumption was
even narrated in the said order. It is merely
on account of the aforesaid presumption,
surmises
and
conjectures
that
the
Committee
proceeded
to
cancel
the
examinations and offered the petitioner to
appear in the subsequent examinations of
2014-15. In the said order, the Lucknow
University itself has admitted that the order
dated 21.05.2012 was never communicated
to the petitioner and a decision has already
been taken previously that the examination
for 2009 of the B.Sc. 3rd Year Examination
stood cancelled. In the last paragraph of the
said order, it has been stated that
considering the serious nature of the
allegation against the petitioner and also
considering the serious lapse on the part of
the University Authorities, a detailed
enquiry ought to be instituted to fix the
responsibility of the person, who is
responsible for the same and the said
enquiry to be produced in the next meeting
of the Committee. At this stage, it is
sufficient to indicate that despite the
counter affidavit having been filed by the
Lucknow University on 27.11.2016, there
is no whisper with regard to any enquiry
proceedings having been conducted or
concluded
as
per
the
order
dated
15.11.2014. While assailing the order dated
15.11.2014, counsel for the petitioner has
vehemently submitted that no opportunity
has been given to the petitioner and the
entire proceedings have been conducted
exparte in gross violation of principle of
nature justice.

7. A cryptic show cause notice was
given to the petitioner on 20.02.2010,
merely narrating the allegation against the
petitioner
without
even
supplying
a
photocopy of the answersheets, on the basis
of which such allegations were made. In
the said show cause notice, a mention has
been made to an enquiry which was got
conducted previously where the allegations
were found true against the petitioner but
surprisingly, the enquiry report was also
never submitted to the petitioner nor does
the same find mentions in the show cause
notice.

8. A perusal of the order dated
21.05.2012 by which the paper of the
petitioner was cancelled and she was held
responsible for transplantation of the
answersheets, even the enquiry committee
could not come to a definite conclusion
with regard to the culpability of the
petitioner
for
transplanting
the
answersheets and the Controller of the
Examinations has only held that there was a
possibility
of
transplantation
of
the
answersheets. Mere possibility can never
be a substitute for coming to a definitive
conclusion with regard to the culpability of
the
petitioner
being
involved
in
transplantation of the answersheet which
could have been a misconduct, had the
same been proved by the authority
concerned.

9. From the aforesaid, it is clear
that merely on account of the possibility of
involvement
of
the
petitioner
in
transplantation of the ordersheets, she has
been held to be guilty on the basis of which
her examinations for the 3rd year B.Sc. has
been cancelled and after a lapse of more
than 5 years was offered to appear again in
the examinations of 2014-15.

10.

Considering
the
first
submission of counsel for the petitioner
that the proceedings were in gross violation
of principle of nature justice, it is
abundantly clear that after show cause
7 All. Priyanka Dubey Vs. State of U.P. & Ors.
405
notice, the petitioner had submitted her
response. But, no order was communicated
to the petitioner on the conclusion of the
inquiry proceedings. Even the show cause
notice is bereft of the relevant material
relied upon in the show cause notice itself,
neither the copies of the answersheets were
provided to the petitioner nor was the copy
of the inquiry report, which was an
existence at the time of passing of the show
cause notice was supplied to the petitioner.

11. In the aforesaid circumstances,
this Court is of the considered view that the
proceedings conducted by the respondents
were clearly in gross violation of
principle of natural justice and such
proceedings cannot be sustained. The
second aspect of the matter is with regard
to the non-communication of the order
dated 21.05.2012. Merely passing of the
order is not sufficient to hold a person
guilty during an inquiry but it is equally
essential and mandatory that such an
order should in fact be communicated to
the delinquent at the conclusion of the
enquiry
proceedings.
Noncommunication of the order renders the
same non-est and non-existing and no
action can be taken in furtherance of the
order which has not been communicated
to the party concerned.

12. The impugned order dated
15.11.2014 has been passed only on the
basis of previous order dated 21.05.2012.
Once we have held the order dated
21.05.2012 being illegal and non-est, then
the subsequent order dated 15.11.2014
based solely on the previous order dated
21.05.2012 would suffer the same fate and
is also illegal and arbitrary to the extent it
cancels the papers of the petitioner
pertaining to the examinations held in
2009.
13. The pronouncements of the
Supreme Court in the case of Bachhittar
Singh v. State of Punjab and another
reported in AIR 1963 SC 395 and the
State of Punjab and another v. Resham
Singh and others reported in AIR 1966
SC 1313 have firmly established the rule
that an administrative order takes effect
from the date it is communicated to the
person concerned or is otherwise published
in the appropriate manner.

14. The Hon'ble Supreme Court in
a catena of cases have clearly laid down the
consequences of non-communication of
orders to the affected party and in this
regard one may gainfully refer to the
decision in Sethi Auto Service Station vs.
DDA reported in (2009) 1 SCC 180
wherein the Hon'ble Supreme Court after
referring to the case of Bachhittar Singh
vs. State of Punjab reported in AIR 1963
SC 395 made the following observation:-

 "14. It is trite to state that notings
in a departmental file do not have the
sanction of law to be an effective order. A
noting by an officer is an expression of his
viewpoint on the subject. It is no more than
an opinion by an officer for internal use
and consideration of the other officials of
the department and for the benefit of the
final decision-making authority. Needless
to add that internal notings are not meant
for outside exposure. Notings in the file
culminate
into
an
executable
order,
affecting the rights of the parties, only
when it reaches the final decision-making
authority in the department, gets his
approval
and
the
final
order
is
communicated to the person concerned.

15. In Bachhittar Singh v. State
of
Punjab
AIR
1963
SC
395,
a
Constitution Bench of this Court had the
406 INDIAN LAW REPORTS ALLAHABAD SERIES
occasion to consider the effect of an order
passed by a Minister on a file, which order
was not communicated to the person
concerned. Referring to Article 166(1) of
the Constitution, the Court held that order
of the Minister could not amount to an
order by the State Government unless it
was expressed in the name of the
Rajpramukh, as required by the said article
and was then communicated to the party
concerned.
The
Court
observed
that
business of State is a complicated one and
has necessarily to be conducted through the
agency of a large number of officials and
authorities. Before an action is taken by the
authority concerned in the name of the
Rajpramukh,
which
formality
is
a
constitutional
necessity,
nothing
done
would amount to an order creating rights or
casting liabilities to third parties. It is
possible, observed the Court, that after
expressing one opinion about a particular
matter at a particular stage a Minister or the
Council of Ministers may express quite a
different opinion which may be opposed to
the earlier opinion. In such cases, which of
the two opinions can be regarded as the
"order" of the State Government? It was
held that opinion becomes a decision of the
Government only when it is communicated
to the person concerned."

16. To the like effect are the
observations
of
this
Court
in
Laxminarayan R. Bhattad v. State of
Maharashtra [Laxminarayan R. Bhattad
v. State of Maharashtra, (2003) 5 SCC
413], wherein it was said that a right
created under an order of a statutory
authority must be communicated to the
person concerned so as to confer an
enforceable right."

17. From the above, it is clear that
the manner of conducting the inquiry by the
Lucknow University in the present case
was clearly illegal and arbitrary as no
opportunity given to the petitioner and the
first order dated 21.05.2012 it seems was
passed three years after the alleged incident
with regard to transplantation of the order
sheets. The matter directly pertains to the
educational future of the student, who was
deprived from sitting in the examinations of the
B.Sc. 3rd year and even pursuing further
education, to which the candidate may have been
entitled. The action of the Lucknow University
in not only in violation of principle of nature
justice but has deleterious effect on the future of
the candidate and such an action is deplorable.

18. It is in the aforesaid circumstance,
this Court is of the considered view that merely
permitting the petitioner to sit in the
examinations of 2014-15 does not in any way
justify the negligent and careless conduct of the
University.

19. In the impugned order dated
15.11.2024 an inquiry was also ordered by the
Vice-Chancellor
to
inquire
into
the
circumstances as to why the order dated
21.05.2012 was not communicated to the
petitioner. The counter affidavit of the University
is silent on this aspect of the matter. It seems that
the University is not serious about such
directions and even the Vice-Chancellor has not
cared to see that his orders are complied.

20. In light of the above, the writ
petition is allowed and the order dated
15.11.2014 stands quashed except Clause 3
which provides for conduct of inquiry, in
view of the fact that I have already held
that the previous order dated 21.05.2012 is
non-est and non-existing.

21. Before parting, it is pertinent to
add, as recorded above, no opportunity was
given to the petitioner nor there is a definite
7 All. State of U.P. Vs. Addl. Commissioner Admn., Lucknow & Ors.
407
finding with regard to the culpability of the
petitioner, coupled with the fact that the
order
dated
21.05.2012
was
not
communicated to the petitioner and hence
she was not permitted to sit in the
examinations for the year 2012-13, the
Lucknow University is responsible for
ruining the career of a student without there
being any definite and concrete finding of
misconduct in the alleged transplantation of
answersheets.

22. The courts have consistently
laid down that for unnecessary delay and
inconvenience, the opposite party must be
compensated with costs. Discussing the
purpose, Hon'ble Supreme Court in the
case
of
Revajeetu
Builders
and
Developers versus Narayanswamy and
sons and others reported in (2009) 10
Supreme Court Cases 84 has held :

 "62. The purpose of imposing
costs is to:

 (a)
discourage
mala
fide
amendments designed to delay the legal
proceedings;

(b) compensate the other party for the
delay and the inconvenience caused;

 (c) compensate the other party
for avoidable expenses on the litigation
which had to be incurred by the opposite
party for opposing the amendment; and

 (d) to send a clear message that
the parties have to be careful while drafting
the original pleadings."

23. In view of the above, cost must
be compensatory in nature so as to provide
remedy for the inconvenience and anguish
suffered by the aggrieved due to negligence
and failure to discharge duty enshrined
upon the authority.

24. In these circumstances, the
petitioner at best can only be compensated
and accordingly, the petition is allowed at
the cost of rupees two lakhs, which shall be
paid by the respondent University to the
petitioner within a period of two months
from the date a certified copy of the order
is produced before the concerned authority.
---------
(2024) 7 ILRA 407
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.07.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ C No. 3000070 of 2002

State of U.P. ...Petitioner
Versus
Addl. Commissioner Admn., Lucknow. &
Ors. ...Respondents

Counsel for the Petitioner:
Standing Counsel

Counsel for the Respondents:
C.S.C., Sri Vijay Kumar Pandey

A. U.P. Imposition of Ceiling on Land
Holdings
Act,1960
-
Section
5(6)
-
Explanation I(b) - In determining the
ceiling area any transfer of land made
after the twenty-fourth day of Jan., 1971,
which but for the transfer would have
been declared surplus land under this Act,
is ignored and not taken into account. The
expression 'transfer of land made after the
twenty-fourth day of Jan. 1971' includes
any
admission,
acknowledgment,
relinquishment or declaration in favour of
a person to the like effect made in any
other deed or instrument or in any other
manner (Para 16)