# Rajendra Dhar Dwivedi v. State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 839
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-21
- **Case number:** Writ - A No. 9908 of 2023
- **Bench:** Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-dhar-dwivedi-v-state-of-u-p-ors-51492
- **Pages:** 6

## Headnote

Law
-
Central
Service
Regulation - Reg. 351-A - Post retiral
benefit - Initiation of inquiry - Matter
relate to an events taken place four years
prior to retirement - Earlier, High Court
quashed the notice granting liberty to the
Governor to proceed under Reg. 351-A -
No order has been passed - Mandamus
840 INDIAN LAW REPORTS ALLAHABAD SERIES
sought - Held, since matter relates to the
event which took place four years prior to
the retirement of the petitioner, so no
action can be taken against the petitioner
and inquiry cannot be initiated hence,
there is no occasion to consider the matter
relating to grant of any approval under
Regulation 351-A of C.S.R. - There exists
no impediment in making the payment of
post retiral benefits to the petitioner.
(Para 13 and 15)

Writ petition allowed. (E-1)

List of cases cited :-

## Text

2 All. Rajendra Dhar Dwivedi Vs. State of U.P. & Ors.
839
does not apply. It has already been noticed
that there is no issue in this case that the
Act of 2021 does not apply to the
respondents. What, therefore, follows is
that the law laid down in Prem Singh
would govern the rights of employees in
the
respondents'
establishment.
The
decisions that have followed and extended
the principle in Prem Singh to classes of
employees functioning dehors the rules
followed by regularization for the purpose
of reckoning their qualifying service,
entitling them to pension, would squarely
apply to the petitioner's case.

17. In the opinion of this Court,
therefore, the petitioner is entitled to the
reckoning of his services rendered on ad
hoc basis w.e.f. 02.09.1988 until his
regularization in service on 26.03.2006 for
the purpose of determining his post retiral
benefits. The respondents have committed
a manifest error in not taking into account
the period of service rendered on ad hoc
basis prior to regularization for the purpose
of determining the petitioner's pension,
gratuity and other post retiral benefits.
These have to be determined taking into
account the entire period of service,
including that rendered on ad hoc basis
prior to regularization.

18. In the result, this petition succeeds
and is allowed with costs. A mandamus is
issued to the respondents, ordering them to
revise and redetermine the petitioner's post
retiral benefits, including pension and
gratuity, taking into account his services
rendered on ad hoc basis from 02.09.1988
to 25.03.2006, followed by regularization.
The necessary re-determination shall be
carried out within a period of two months
of the date of communication of a copy of
this judgment to the respondents. Arrears
on account of the revised post retiral
benefits shall be paid to the petitioner
within a month of the determination thereof
by the respondents. In the event of delay in
making the revised determination or the
payment of arrears as per schedule
indicated above, the petitioner would be
entitled to simple interest at the rate of 6%
per annum on the due arrears.

19. Let a copy of this order be
communicated to the Principal Secretary,
Local
Bodies,
Government
of
U.P.,
Lucknow, the Director, Local Bodies,
Lucknow, the Chairman, Nagar Palika
Parishad, Etawah, District Etawah and the
Executive Officer, Nagar Palika Parishad,
Etawah, District Etawah by the Registrar
(Compliance).
----------
(2024) 2 ILRA 839
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.02.2024

BEFORE

THE HON'BLE MANISH KUMAR, J.

Writ - A No. 9908 of 2023

Rajendra Dhar Dwivedi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sameer Kalia

Counsel for the Respondents:
C.S.C., Abhinav Trivedi

A.
Service
Law
-
Central
Service
Regulation - Reg. 351-A - Post retiral
benefit - Initiation of inquiry - Matter
relate to an events taken place four years
prior to retirement - Earlier, High Court
quashed the notice granting liberty to the
Governor to proceed under Reg. 351-A -
No order has been passed - Mandamus
840 INDIAN LAW REPORTS ALLAHABAD SERIES
sought - Held, since matter relates to the
event which took place four years prior to
the retirement of the petitioner, so no
action can be taken against the petitioner
and inquiry cannot be initiated hence,
there is no occasion to consider the matter
relating to grant of any approval under
Regulation 351-A of C.S.R. - There exists
no impediment in making the payment of
post retiral benefits to the petitioner.
(Para 13 and 15)

Writ petition allowed. (E-1)

List of cases cited :-

1. R. Sundaram Vs Tamil Nadu St. Level
Scrutiny Committee; (2023) SCC OnLine SC 287

(Delivered by Hon'ble Manish Kumar, J.)

1. Heard.

2. With the consent of the learned
counsel for the petitioner, learned Standing
Counsel representing the respondent nos. 1
and 3 as well as Shri Abhinav Trivedi,
learned counsel for the respondent no. 2,
the
present
writ
petition
is
finally
adjudicated at the admission stage itself.

3. Present writ petition has been
preferred for issuing a direction to the
respondents to release the post retiral
benefits of the petitioner i.e. an amount of
Rs. 20 lacs towards Grautity, Rs. 33 lacs
approximately towards commutation of
Pension and further pay regular pension to
the petitioner with interest in view of
paragraphs nos. 49, 50 and 51 of the writ
petition as no order has been passed either
by the Governor or the State Government.

4. Learned counsel for the petitioner
has submitted that the petitioner after
attaining the age of superannuation had
retired
from
the
post
of
Director
(Agriculture) on 31.10.2019 but in place of
making payment of post retiral dues to the
petitioner, the petitioner was served with a
show-cause notice dated 04.09.2021 under
Rule 10 (2) of the Uttar Pradesh
Government
Servant
(Discipline
and
Appeal) Rules,1999 (hereinafter referred to
as, the Rules, 1999) for minor punishment.
The said notice was challenged by the
petitioner by filing a Writ Petition No.
23536 (S/S) of 2020 which was allowed in
part by this Court vide its judgment and
order dated 02.12.2020 and quashed the
notice under challenge. The relevant extract
of the said judgment is being reproduced
hereunder:-

"For these reasons the issuance
of show-cause notice to the petitioner for
imposition of a penalty under Rule 10(2) of
the Rules 1999 is apparently beyond the
scope of the Rules and the jurisdiction
vested thereunder with the opposite parties.
The appropriate course, if at all i.e. if the
conditions mentioned in Article 351-A of
the
Civil
Services
Regulations
were
satisfied was to proceed against the
petitioner under the said provision in
accordance with law, however, even in this
regard the learned counsel for the
petitioner says that the allegations pertain
to an incident which took place more than
four years earlier and, therefore, any
action under Article 351-A of the Civil
Services Regulations stands excluded by
the
provisions/prohibitions
contained
therein as no chargesheet was or has been
issued to the petitioner within the said
period of four years nor was he ever under
suspension, nevertheless, it is for the State
Government to see as to whether the
contingencies mentioned in Article 351-A
of the Civil Services Regulations are
satisfied for any action against the
petitioner or not, but so far as the
impugned notice is concerned, same is
2 All. Rajendra Dhar Dwivedi Vs. State of U.P. & Ors.
841
clearly unsustainable and liable to be
quashed. It is accordingly quashed subject,
however,
to
the
observations
made
hereinabove.

Considering the fact that only
provisional pension has been sanctioned to
the petitioner and has been granted which
orders are also under challenge, instead of
interfering with the same at this stage and
quashing the same, it would be appropriate
if the State Government examines the
matter as to whether the petitioner is
amenable to any action under Article 351A of the Civil Services Regulations in the
facts of the case or not, but, within a period
of six weeks from the date an e-copy of this
order downloaded from the official website
of this High Court is submitted before the
opposite party no. 1.

The
consequences
as
to
entitlement of post-retirement dues to the
petitioner shall depend upon the same,
meaning thereby, if the State Government
comes to the conclusion that the mandatory
prerequisites mentioned in Article 351-A of
the Civil Services Regulations are not
satisfied and no action can be taken against
the petitioner under the same, then the
petitioner shall be entitled to all the postretirement dues otherwise admissible as
per law, which shall be paid to him within
3 months therefrom. However, if the State
Government finds that contingencies
mentioned in the said provision are
satisfied and the petitioner can be
proceeded under the said provision, then,
appropriate initiation shall be made
within one month and the consequences
as to entitlement of the petitioner to postretirement dues shall follow accordingly
as per law. The impugned orders
sanctioning and granting provisional
pension shall abide by such decision
which is to be taken by the opposite party
no. 1 as aforesaid.

The writ petition is allowed in
part."

5. It is further contended that after the
said judgment, an another notice dated
23.02.2021 was issued by the Additional
Chief
Secretary
(Agriculture)
to
the
petitioner
for
the
same
charges
as
mentioned in the earlier notice issued under
Rule 10 (2) of the Rules 1999, mentioning
therein that the Show-Cause notice dated
04.09.2021 has now been converted into
notice Under Regulation 351 (A) of the
Civil
Services
Regulation
(hereinafter
referred to as, the C.S.R).

6. The said notice was again
challenged by the petitioner by filing Writ
Petition No. 8799 (S/S) of 2021, which was
partly allowed by this Court vide its
judgment and order dated 22.06.2021. The
relevant extract of the said judgment is
quoted hereinebelow:-

"14. Learned Senior Advocate on
the other hand has submitted that a perusal
of the notice dated 29.11.2018 filed at page
126 of the writ petition would show that it
was not issued with regard to any
preliminary enquiry or with regard to any
disciplinary proceedings to be initiated
against the petitioner. It had only called for
an explanation and such a notice cannot be
termed
to
be
an
order
initiating
disciplinary
proceedings
because
disciplinary proceedings are said to be
initiated as per the Explanation given
under Article 351-A of the Civil Services
Regulations, only when the employee
concerned is suspended or a charge-sheet
is issued to him.

15. Be that as it may, this Court is
only concerned with the careless manner in
which the order impugned has been issued
by the respondent no.2. He has not referred
842 INDIAN LAW REPORTS ALLAHABAD SERIES
to the conditions mentioned under Article
351-A of the Civil Service Regulations nor
the specific directions issued by the Court
in
its
judgment
and
order
dated
02.12.2020. He has merely converted the
earlier show cause notice dated 04.09.2020
which was already quashed by the Court,
into a show-cause notice under Article 351A of the Civil Services Regulations. The
order impugned dated 23.02.2021 deserves
to be quashed on this ground alone. It is
hereby quashed.

16. His Excellency the Governor
of Uttar Pradesh in exercise of power
under Article 351-A may pass a fresh order
as expeditiously as possible. The post
retiral benefits of the petitioner shall be
subject to order passed by His Excellency
the Governor of the Uttar Pradesh as
already been observed by this Court in its
judgment and order dated 02.12.2020.

17. If the Government comes to a
conclusion that no case under Article 351A of the Civil Services Regulations is made
out for proceeding against the petitioner,
then the post retiral benefits of the
petitioner shall be released within three
months.

18. The writ petition stands partly
allowed."

7. It is further submitted that the
judgment was passed on 22.06.2021
and now more than two and a half
years have passed but till date no
order has been passed by the Governor
while exercising its power under
Regulation 351 A of C.S.R. and
depriving the petitioner of his lawful
claims of post retiral benefits which is
neither a charity or a bounty as per the
law settled in the case of R.Sundaram
Vs. Tamil Nadu State Level Scrutiny
Committee (2023) SCC OnLine SC
287.

8. It is further submitted that in the
show cause notice dated 04.09.2020 issued
under Rule 10 (2) of the Rules, 1999 and
the Show Cause notice dated 23.02.2021
(both are quashed by this Court, as
mentioned above), the allegation or the
explanation which were sought from the
petitioner related to the period of four years
prior to the retirement of the petitioner and
as per Regulation 351 (A) of C.S.R., no
inquiry can be initiated against the
petitioner for the charges which relate to
for the period of four years of retirement.

9. On the other hand, learned
Standing
Counsel
on
the
basis
of
instructions received has submitted that the
legal opinion has been taken and the matter
is under consideration but unable to dispute
that the charges which were alleged in the
earlier two show cause notices were related
to the period four years before retirement of
the petitioner.

10.

Learned
counsel
for
the
respondent
no.
2
on
the
basis
of
instructions has submitted that the Office of
the Governor has not received the complete
file from the Department for consideration
under Regulation 351 (A) of C.S.R. and till
date no such order under said regulation
has been passed against the petitioner.

11. After hearing learned counsel for
the parties and going through the record, it
is found that the petitioner has retired on
31.10.2019 and as on today, there is no
inquiry pending against the petitioner.
Earlier two proceedings i.e. first Show
Cause notice dated 04.09.2020 issued under
Rule 10 (2) of the Rules, 1999 and
thereafter a second Show Cause notice
dated 23.02.2021 issued by the Additional
Chief Secretary (Agriculture) converting
the earlier show cause notice issued under
2 All. Rajendra Dhar Dwivedi Vs. State of U.P. & Ors.
843
Rule 10 (2) of the Rules, 1999 to
Regulation 351 (A) of C.S.R. had already
quashed by this Court as mentioned in the
preceding paragraphs.

12. The petitioner had earlier also
approached this Court by filing writ
petitions against the show cause notices
issued against him with a prayer for
payment of post retiral dues. Both the
petitions were partly allowed by quashing
of the notices issued against the petitioner
and giving liberty to the respondents to
look into the case of the petitioner as to
whether any approval is required under
Regulation 351-A of C.S.R.

13. This Court vide its judgment and
order dated 22.06.2021 had granted liberty
to proceed under Regulation 351 (A) of
C.S.R. but more than two and a half years
have passed but the department has not
forwarded
the
complete
file
to
the
Governor to pass an order under Regulation
351 (A) of C.S.R. , as informed by learned
counsel
for
the
respondent
no.
2-
Additional
Chief
Secretary,
Hon'ble
Governor
Secretariat,
Raj
Bhawan,
Lucknow and it has also informed that no
order under Regulation 351 (A) of C.S.R.
has been passed so far.

14. Under these circumstances as
mentioned above, next it may be examined
whether Regulation 351-A of C.S.R. is
attracted or not for that the necessary
questions which may require attention of
this Court are as follows:-

firstly, any order has been passed by
the competent authority under Regulation
351-A of C.S.R. or not;

secondly,
and
most
importantly
whether Regulation 351-A is applied to the
present case or not; and

thirdly, as to whether there is any
impediment existing in payment of post
retiral benefits to the petitioner.

15. The questions framed above are
being dealt with as below:

Firstly, it may be seen whether any
order has been passed under Regulation
351-A and it is to be found that so far, no
such order has been passed as would be
clear from submission made by the learned
counsel for the respondent no. 2-Additional
Chief
Secretary,
Hon'ble
Governor
Secretariat.
Learned
counsel
for
the
respondent no. 2 informed this Court on the
basis of his instructions that complete file
was
never
made
available
by
the
department to the office of Governor so till
date no order under Regulation 351 A has
been passed against the petitioner.

Secondly, perusal of the show-cause
notices show that the allegations relate to
24.07.2015 and the petitioner has retired on
31.10.2019, so the allegation is more than
four years prior to the retirement of the
petitioner. This fact is not disputed by the
learned counsel for the respondents.
Regulation 351 (A) of C.S.R. Regulation
351
(A)
of
C.S.R.
is
reproduced
hereinbelow:-

" 351-A. The Governor reserves
to himself the right of withholding or
withdrawing a pension or any part of it,
whether permanently or for a specified
period and the right of ordering the
recovery from a pension of the whole or
part of any pecuniary loss caused to
Government, if the pensioner is found in
departmental or judicial proceedings to
have been guilty of grave misconduct, or to
have caused pecuniary loss to Government
by misconduct or negligence, during his
844 INDIAN LAW REPORTS ALLAHABAD SERIES
service, including service rendered on reemployment after retirement.

Provided that :-

(a)
such
departmental
proceedings, if not instituted while the
officer was on duty either before retirement
or during re-employment-

(i) Shall not be instituted with the
sanction of the Governor,

(ii) shall be in respect of event
which took place not more than four years
before the institution of such proceedings,
and"

It is thus clear that since matter relates
to the event which took place four years
prior to the retirement of the petitioner
which is an undisputed fact as accepted by
Counsel for respondents, so no action can
be taken against the petitioner and inquiry
cannot be initiated hence, there is no
occasion to consider the matter relating to
grant of any approval under Regulation
351-A of C.S.R.

And lastly, it is found that there exists
no impediment in making the payment of
post retiral benefits to the petitioner.

16. After retirement, an employee is
dependent upon his/her post retiral dues but
in place of getting the same the petitioner
had been compelled by the arbitrary
action of the respondents to approach
this Court time and again. In place of
getting any dues the petitioner is
spending the cost of litigation from
his life long savings. The petitioner
has been deprived from getting his
lawful claim due to wrong actions,
inaction
and
non
action
by
the
authorities at different stages which is
making the petitioner to suffer great
hardship.

17. In view of the discussions made
hereinabove, the writ petition is allowed.

18. Respondent no. 1 is directed to
make payment of all post retiral dues to the
petitioner including computation of pension
within a period of two months from the
date of production of certified copy of this
order. In case, the payment is not made in
the period mentioned hereinabove, the
respondents will liable to pay the simple
interest at the rate of 7.5% from the date of
retirement till actual payment is made.
----------
(2024) 2 ILRA 844
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.01.2024

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ - A No. 10260 of 2023
With
Writ - A No. 10256 of 2023
and other connected cases

Rachana & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Vineet Kumar Singh, Sri Rishabh
Srivastava, Sri H.N. Singh (Sr. Advocate)

Counsel for the Respondents:
C.S.C., Smt. Archana Singh

A. Service Law - Basic Shiksha Parishad
Teachers - Inter-District / Mutual Transfer -
G.O.
dated
02.06.2023
-
Clause
4
-
Interpretation.

Clause
4
limits
inter-district
transfers
to
maximum 10% of teachers working as on
30.04.2023
vis-à-vis
sanctioned
posts
-
Calculation
made
by
considering
both
sanctioned strength and actual working strength
- If working strength exceeds sanctioned posts,
incoming transfer may be declared "zero"