# Rajendra Singh v. The State of U.P. & Ors

- **Citation:** (2024) 3 ILRA 506
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-28
- **Case number:** Writ A No. 6145 of 2021
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-singh-v-the-state-of-u-p-ors-51676
- **Pages:** 7

## Headnote

A. Service Law - UP Secondary Education
Service Commission Act, 1982 - S. 33-B -
Cancellation of regularisation - No notice
was given - No averment of fraud or
misrepresentation, except petitioner being
son in law of the then Principal, was made
- Effect - How far the authority had
power to recall earlier order - Held, once
the Regional Selection Committee had
acted in the manner regularising the
services of the petitioner, it was not open
for
the
Regional
Joint
Director
of
Education
to
have
reopened
the
controversy after almost 15 years on his
own without even referring the matter to
the Regional Selection Committee. (Para 9
and 15)

B.
Service
Law
-
UP
Intermediate
Education Act, 1921 - Section 16-GG (3) -
Appointment
-
Prohibited
degree
of
relation - Violation alleged to be occurred
during
appointment
-
Petitioner
discharged 15 years services since after
regiularisation
-
No
enquiry
was
conducted - Effect - Held, once the
regularisation of appointment has already
taken place, such teacher becomes a
permanent member of service and no such
teacher's service can be dispensed with on
the ground that there were some inherent
lack of qualification at the time of initial
appointment. The question could have
been gone into by issuing a show cause
notice holding an inquiry into the matter
and so that option was open but this was
not opted for - Regional Joint Director of
Education was certainly not an authority
as defined under Section 33-B (2) to have
reopened the issue. (Para 17)

C. Service Law - Constitution of India -
Article 14 - Principle of natural justice -
audi alteram partem - No notice was
given before cancelling the regularization
order - Effect - Held, nobody can be
condemned unheard. Such order that
cannot be sustained on the touchstone of
the principle of maxim of audi alteram
partem cannot be sustained in law and
authority which passes order has to assess
and evaluate whether order which it is
going to pass would have any adverse civil
consequences upon the person against
whom the order is being passed and if
such civil consequences are perceivable,
then such authority is liable to give at last
notice to the concerned person so as to
get his/her reply - High Court held the
order dated 31.12.2020 bad for non
compliance of principles of natural justice.
(Para 10 and 12)

Writ petition allowed. (E-1)

List of cases cited :-

## Text

506 INDIAN LAW REPORTS ALLAHABAD SERIES
27.01.2021, it appears that this aspect was
not at all considered. Further, it is observed
that though it may not have been possible
in the invisilative / examination centre
itself but nothing of its kind was done and
inquiry report was based entirely upon the
report of R. Krishna, the handwriting
expert who was not even a registered
handwriting expert. These, observations
were also not considered by the Inquiry
Officer while conducting the re-inquiry.
Further, it is observed that the Disciplinary
Authority and the Appellate Authority have
also not considered the various aspects of
the matter which indicates that Disciplinary
Authority and Appellate Authority also
required to consider the other aspects not
only the inquiry report and the report
submitted by the expert while imposing
penalty but in the instant case, perusal of
the impugned order dated 29.11.2021
clearly
shows
that
the
Disciplinary
Authority has not at all considered any
other relevant material while imposing the
penalty except giving the opportunity to the
petitioner to cross-examine the R. Krishna
who is so-called handwriting expert.
Neither
Disciplinary
Authority
nor
Appellate Authority has considered the
other
aspects
while
imposing
the
punishment vide order dated 29.11.2021.

36. Further, as observed by the
Division Bench of this Court in Vijay
Pal and 22 others v. Union of India
and 3 others (supra) that opinion of the
expert was required to have been
viewed and considered along with the
other materials available on record. In
the event of impersonation mismatch of
handwriting / thumb impression of the
petitioner became unsustainable unless
supported by any other material or
evidence that the petitioner had not
appear in the examination or had not
filled the application form.

37. Even in the instant case, the respondents
have failed to corroborate the expert report along
with the other material available on record and it
clearly discloses that the respondents have not
even chosen to verify or to substantiate that the
petitioner had not participated in the examination
centre except having an expert opinion that too
from non-registered expert.

38. In view of the said circumstances, the
respondents have passed the impugned orders
solely depending on the report submitted by one
R. Krishna, who is handwriting expert, without
verifying the other material and without
establishing that the petitioner has not appeared in
the examination.

39. In view of the same, the impugned
orders dated 29.11.2021 and also the Appellate
Authority order dated 27.01.2022 are set aside,
remanding the matter to afresh inquiry by sending
all the relevant documents to the forensic
laboratory and also conducting a detailed inquiry
by calling all the relevant records and examining
the concerned persons and take a proper action,
accordingly.

40. In the result, the writ petition is
disposed of.
----------
(2024) 3 ILRA 506
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.02.2024
BEFORE
THE HON'BLE AJIT KUMAR, J.

Writ A No. 6145 of 2021

Rajendra Singh ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents
3 All. Rajendra Singh Vs. The State of U.P. & Ors.
507
Counsel for the Petitioner:
Sri Ram Pandey, Sri Kapil Kumar, Sri
Kuldeep
Saxena,
Sri
Pradeep
Kumar
Pandey, Sri Vijit Saxena, Sri Yogendra
Singh Bohra

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

A. Service Law - UP Secondary Education
Service Commission Act, 1982 - S. 33-B -
Cancellation of regularisation - No notice
was given - No averment of fraud or
misrepresentation, except petitioner being
son in law of the then Principal, was made
- Effect - How far the authority had
power to recall earlier order - Held, once
the Regional Selection Committee had
acted in the manner regularising the
services of the petitioner, it was not open
for
the
Regional
Joint
Director
of
Education
to
have
reopened
the
controversy after almost 15 years on his
own without even referring the matter to
the Regional Selection Committee. (Para 9
and 15)

B.
Service
Law
-
UP
Intermediate
Education Act, 1921 - Section 16-GG (3) -
Appointment
-
Prohibited
degree
of
relation - Violation alleged to be occurred
during
appointment
-
Petitioner
discharged 15 years services since after
regiularisation
-
No
enquiry
was
conducted - Effect - Held, once the
regularisation of appointment has already
taken place, such teacher becomes a
permanent member of service and no such
teacher's service can be dispensed with on
the ground that there were some inherent
lack of qualification at the time of initial
appointment. The question could have
been gone into by issuing a show cause
notice holding an inquiry into the matter
and so that option was open but this was
not opted for - Regional Joint Director of
Education was certainly not an authority
as defined under Section 33-B (2) to have
reopened the issue. (Para 17)

C. Service Law - Constitution of India -
Article 14 - Principle of natural justice -
audi alteram partem - No notice was
given before cancelling the regularization
order - Effect - Held, nobody can be
condemned unheard. Such order that
cannot be sustained on the touchstone of
the principle of maxim of audi alteram
partem cannot be sustained in law and
authority which passes order has to assess
and evaluate whether order which it is
going to pass would have any adverse civil
consequences upon the person against
whom the order is being passed and if
such civil consequences are perceivable,
then such authority is liable to give at last
notice to the concerned person so as to
get his/her reply - High Court held the
order dated 31.12.2020 bad for non
compliance of principles of natural justice.
(Para 10 and 12)

Writ petition allowed. (E-1)

List of cases cited :-

1. Pandurang & ors. Vs St. of Maharasthra;
1986 (4) SCC 436

2. D. Satyanarayana Rao Vs Vasudev Asrani &
anr; 2001 (3) ALD 510: 2001 SCC OnLine AP
325

3. Rama Tyagi Vs Delhi Development Authority;
2000 (4) L.L.N. 1103

4. Chandra Singh Vs St. of Raj. & anr; JT 2003
(6) SC 20

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

1. Heard Sri Y.S. Bohra, learned
counsel for the petitioner, Sri Pradeep
Kumar
Pandey,
learned
counsel
for
respondent No.4 and learned Standing
Counsel for the State-respondents.

2. Petitioner before this Court is
aggrieved by the order dated 31.12.2020
whereby the Regional Joint Director of
Education recalled the earlier regularisation
order
granted
to
the
petitioner
on
508 INDIAN LAW REPORTS ALLAHABAD SERIES
12.12.1995 under Section 33-B of the UP
Secondary Education Service Commission
Act, 1982 (for short, "Commission Act,
1982").

3. Twin arguments have been
advanced by the learned counsel for the
petitioner: (a) once the regional selection
Committee had accorded regularisation to
the petitioner under its resolution /decision
dated 12.12.1995, the Regional Joint
Director of Education (I) Region Meerut
himself was not authorised to recall such
regularisation order and cancel the same.
Thus, according to learned counsel for the
petitioner, the order impugned is bad for
coram non judice; and (b) the order had
been
passed
recalling
the
order
of
regularisation without giving any notice
much less a show cause notice to the
petitioner even though the order impugned
was to have adverse civil consequences.

4. It is submitted by learned counsel
for the petitioner that he was initially
appointed on ad-hoc basis under Section 18
of Commission Act, 1982 on 09.07.1985 on
account of then incumbent Pawan Verma,
Lecturer in the subject of Mathematics
proceeding on leave without pay. The
approval of appointment of the petitioner
on ad-hoc basis was granted by the District
Inspector
of
Schools
(DIOS)
on
02.09.1985. Petitioner continued as such,
according to him, until the vacancy fell
substantively
vacant
on
account
of
resignation
of
said
Ram
Singh
on
19.06.1987. Resultantly, the committee of
management proceeded to continue him by
means of an order dated 12.07.1987. This
according to him, was a kind of fresh
appointment but it was in continuation of
his earlier appointment as he was initially
appointed in the year 1985 filling up the
place of said Ram Singh who had earlier
proceeded on leave but ultimately came to
resign at later point of time. The approval
of appointment of petitioner to the
substantive vacancy came to be granted on
16.01.1990.

5. It is argued on behalf of the
petitioner that petitioner's marriage with the
daughter of the then principal of the
institution took place on 01.03.1987, so it
was much after the initial appointment of
the petitioner in the institution against a
short term vacancy which later on became a
substantive vacancy. It is submitted that
petitioner has now attained the age of
superannuation on 31st March, 2023.

6. Per contra, argument advanced on
behalf of the State-respondents is that the
appointment
of
petitioner
made
on
12.07.1987 is to be taken as a fresh
appointment and admittedly on that date,
petitioner had already been married to the
daughter of then sitting principal of the
institution. However, he could not deny the
fact that petitioner had been initially
appointed in the year 1985 against a short
term vacancy on account of the said
Lecturer Ram Singh proceeding on leave
without pay. This has been so specifically
stated in para 5, 6 & 8 of the counter
affidavit.

7. On the legal question being raised
on behalf of the petitioner, learned Standing
Counsel could not dispute that decision
impugned in the writ petition dated
31.12.2020 was exclusively taken by the
Regional Joint Director of Education
without there being any approval in that
regard
by
the
Regional
Selection
Committee. He also could not dispute that
there is no averment in the entire counter
affidavit that any notice much less a show
cause notice was given to the petitioner
3 All. Rajendra Singh Vs. The State of U.P. & Ors.
509
before the order impugned came to be
passed.

8. Having heard learned counsel for
the respective parties, having perused the
record and the arguments advanced on
behalf of respective parties, two points
emerge for consideration before this Court:
(i) whether the order of Regional Joint
Director of Education dated 31.12.2020 is
bad for want of non compliance of
principles of natural justice; and (ii)
whether the order passed by the Regional
Joint
Director
of
Education
dated
31.12.2020 is sustainable for want of
lawful authority.

9. Coming to the first point, I find that
the entire order dated 31.12.2020 is
couched in a language as if the petitioner
mislead
the
authority
in
obtaining
regularisation in the year 1995. In such
circumstances, therefore, it could have been
said
that
petitioner
mislead
or
misrepresented the matter in connivance
with the committee of management but
there is no averment of fraud as such
discernible except the fact that the
petitioner happened to be son in law of the
then sitting principal of the institution. The
petitioner in this petition has filed Lagan
Patrika relating to marriage with the
daughter of the sitting principal of the
institution and had he been given proper
opportunity of hearing before the Regional
Joint Director of Education, he would have
led all these evidence before the authority.

10. Legal principle is well stated in
law that nobody can be condemned
unheard. Such order that cannot be
sustained on the touchstone of the principle
of maxim of audi alteram partem cannot be
sustained in law and authority which passes
order has to assess and evaluate whether
order which it is going to pass would have
any adverse civil consequences upon the
person against whom the order is being
passed and if such civil consequences are
perceivable, then such authority is liable to
give at last notice to the concerned person
so as to get his/her reply. In the present case
admittedly petitioner was discharging his
duties as Lecturer in the subject of
Mathematics with the approval of the DIOS
and his services had been regularised on
12.12.1995 taking aid to section 33-B of
the UP Secondary Education Services
Selection Board Act, 1982. In such
circumstances, the order recalling the order
dated 31.12.2020, would certainly be
resulting into denial of petitioner's right to
draw salary and his continuance in the
institution also gets prejudiced. This, as
matter of fact and also in law has to be
taken to have resulted in adverse civil
consequences.

11. In the circumstances, therefore,
the Regional Joint Director of Education
was bound in law to give at least a notice to
the petitioner which I do not see to be
reflected from any of the recitals made in
the order impugned. Counter affidavit is
also silent regarding opportunity of hearing
being ever afforded to the petitioner before
passing the order impugned in the present
petition.

12. In such circumstances, first point,
(i) is decided in favor of petitioner and
against the respondents and the order dated
31.12.2020 is held bad for non compliance
of principles of natural justice.

13. Coming to the second point, (ii)
with regard to the authority of the Regional
Director of Education to pass order
recalling
the
order
cancelling
the
regularisation dated 12.12.1995 under his
510 INDIAN LAW REPORTS ALLAHABAD SERIES
order dated 31.12.2020, I find it more
appropriate to first look into the provisions
as contained under Section 33-B of the
Commission Act, 1982. Section 33-B (2) of
the Commission Act refers to Regional
Selection Committee for the purposes of
consideration of regularisation of such adhoc
teachers
working
against
the
substantive vacancy. The relevant provision
is reproduced hereinunder:

"2) (a) For each region, there
shall
be
a
Selection
Committee
comprising?

(i) Regional Deputy Director of
Education of that region, who shall be the
Chairman,

(ii) One officer holding a Group
'A' post (specified as such by the State
Government from time to time) in any
department
other
than
Education
department, to be nominated by the State
Government,

(iii) Regional Inspectors of Girls
School of that region;

Provided that the Inspector of the
district shall be co-opted as a member
while
considering
the
cases
for
regularization of that district.

(b) The Selection Committee
constituted under clauses (a) shall consider
the case of every such teacher and on being
satisfied about his eligibility and suitability
in view of the provisions of sub-section (1)
shall, subject to the provisions of subsection (3) recommend his name to the
Management for appointment under subsection (1) in a substantive vacancy."

14. From bare reading of the aforesaid
provision, it is clear that it is the Regional
Joint Director of Education who shall be
the Chairman and officer holding a post as
specified by the State Government, of any
department
other than
the
education
department was to be a nominated member
of the State Government and DIOS of the
concerned
district
shall
be
co-opted
member to such committee. Thus, selection
committee would consist of four members,
three regular members to be appointed and
one co-opted member.

15. In the circumstances, therefore,
the regularisation dated 12.12.1995 must
have been accorded to the petitioner under
a decision taken by such a duly constituted
Regional Selection Committee. Once the
Regional Selection Committee had acted in
the manner regularising the services of the
petitioner, it was not open for the Regional
Joint Director of Education to have
reopened the controversy after almost 15
years on his own without even referring the
matter
to
the
Regional
Selection
Committee.

16. From the recitals made in the
operative portion of the order, I do not find
any whisper about any reference being
even made to the Regional Selection
Committee instead, all that had been was
that, since petitioner fell within the
category of prohibited degree of relation
for the purposes of appointment under
Section 16-GG(3) of the UP Intermediate
Education Act, 1921, the appointment of
the petitioner was held to be void ab initio.

17. In my considered view, once the
regularisation of appointment has already
taken place, such teacher becomes a
permanent member of service and no such
teacher's service can be dispensed with on
the ground that there were some inherent
lack of qualification at the time of initial
appointment. The question could have been
gone into by issuing a show cause notice
holding an inquiry into the matter and so
that option was open but this was not opted
3 All. Rajendra Singh Vs. The State of U.P. & Ors.
511
for. Therefore, in my considered view, the
Regional Joint Director of Education was
certainly not an authority as defined under
Section 33-B (2) to have reopened the issue
and reviewed the decision taken by the
Regional Selection Committee. This power
is not vested with the Regional Joint
Director of Education. Therefore, on the
second
point
also,
the
order
dated
31.12.2020 passed by the Regional Joint
Director of education is held unsustainable.

18. On the principle of coram non
judice also the order passed by the
Regional Joint Director of Education
cannot be sustained. A court or an authority
which is not vested with the power to deal
with the matter if deals with such matter,
then the resultant action is liable to be held
as void ab initio. In the case of Pandurang
& ors v. State of Maharasthra; 1986 (4)
SCC
436,
the
Court
has
in quite
unequivocal terms held that "even a 'right'
decision by a 'wrong' forum is no decision.
It is non-existent in the eye of law. And
hence a nullity." Relying upon said
judgement, Andhra Pradesh High Court in
the matter D. Satyanarayana Rao v.
Vasudev Asrani & anr; 2001 (3) ALD 510;
2001 SCC OnLine AP 325 held that an
authority or Court if does not have the
jurisdiction then such order would be a
nullity. It was held therein that a defect of
jurisdiction, goes to the root and strikes at
the very authority that passes such order.
Further, in the case of Rama Tyagi v. Delhi
Development Authority; 2000 (4) L.L.N.
1103, the Delhi High Court set aside the
order of removal from service for the
reason that authority that had passed the
order, was not empowered to do so.

19. Petitioner has already retired on
31.03.2023. In the circumstances, there is
no point now in remitting the matter for
any decision afresh by the Regional
Selection Committee. In the case of
Chandra Singh v State of Rajasthan &
anr JT 2003 (6) SC 20, the Supreme Court
thus:

"37.
...........A
departmental
proceeding can continue so long as the
employee is in service. In the event, a
disciplinary proceeding is kept pending by
the employer the employee cannot be made
to retire. There must exist specific provision
in the pension rules in terms whereof,
whole or a part of the pension can be
withheld
or
withdrawn
wherefor
a
proceeding
has
to
be
initiated.
Furthermore, no rule has also been brought
to our notice providing for continuation of
such proceeding despite permitting the
employee concerned to retire. In absence of
such a proceeding, the High Court or the
State cannot contend that the departmental
proceedings against the appellant Mata
Deen Garg could continue."

20. It is well settled law that after a
long gap of time, the old appointment
orders cannot be reopened on the ground of
initial lack of inherent qualification or
eligibility. At least there is no such case
here that petitioner was not eligible to be
appointed except falling within a prohibited
degree of relation and that too has been
questioned by the petitioner because when
initial appointment was made in the year
1985, he was not a married person.

21. I also find that petitioner has
continued in employment since 1985
whereas marriage had taken place in the
year 1987. In the circumstances, therefore,
it cannot be said that petitioner while was
given initial appointment, he was within the
prohibited degree of

22. In view of the above, writ
petition succeeds and is allowed. The order
512 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 31.12.2020 passed by the Regional
Joint Director of Education is hereby
quashed. Consequences to follow.

23. Petitioner shall be paid entire
arrears of salary. He shall also be given
benefit of all retirement dues within two
months' time from the date of receipt of
certified copy of this order.
----------
(2024) 3 ILRA 512
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.01.2024
BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ A No. 8845 of 2014

Vishnu Swaroop Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri V.K. Singh, Sri D.K. Singh, Sri Sankalp
Narayan

Counsel for the Respondents:
C.S.C.

A. Service Law - Constitution of India -
Article 354-A - Disciplinary proceeding -
Prior sanction of Governor - Proceeding
was
initiated
before
retirement
and
continuing after retirement - How far
sanction is necessary - Held, if these
proceedings were continued beyond his
retirement on 21.05.2007 and culminated
in the order impugned passed by the
District Magistrate, Kanpur Nagar on
22.06.2011, there was no necessity to
obtain the Governor's sanction under
Article 351-A of the Service Regulations -
Necessity would have arisen only if the
proceedings have been initiated post
retirement; not otherwise. (Para 17)

B. Service Law - Disciplinary proceeding -
Punishment - Award of adverse entry and
withholding
two
increments
with
cumulative effect - Inordinate delay was
occurred in concluding the proceeding -
Effect - Seriousness of charges, how play
as determining factor - Held, a charge,
that is profoundly serious and widely
impacts
clean
administration
in
the
service, must not be allowed to die or
wither away with time - However, if the
charge(s) is (are) not very serious in the
sense that these do not inevitably attract
the imposition of a major penalty if
proved, or by the nature of the acts, are
not
widely
destructive
of
clean
administration in service, an inordinate
delay that features if the order of
punishment were quashed on some other
grounds and the proceedings revived, may
be a good ground to import the principle
about giving quietus to the disciplinary
proceedings - Held further, the inordinate
delay in the conclusion of disciplinary
proceedings in the background of the
nature and gravity of charges against the
petitioner and the manner in which the
respondents have acted, including the
manifestly illegal order imposing penalty
upon the petitioner, in our opinion, would
require a quietus to be now given to these
proceedings, resting it in the petitioner's
favour. (Para 26 and 40)

Writ petition allowed. (E-1)

List of cases cited :-

1. Gaya Prasad Yadav Vs St. of U.P. & ors.;
2022 (11) ADJ 287 (DB) (LB)

2. Dev Prakash Tewari Vs Uttar Pradesh
Cooperative
Institutional
Service
Board,
Lucknow & ors.; (2014) 7 SCC 260

3. St. of U.P. & ors. Vs Harihar Bholenath;
(2006) 13 SCC 460

4. Anant R. Kulkarni Vs Y.P. Education Society &
ors.; (2013) 6 SCC 515

(Delivered by Hon'ble J.J. Munir, J.)

1. This case has got a long and
chequered
history,
where
delay
in