# Ram Rakhan Singh v. State of U.P. and others

- **Citation:** (2008) 1 ILRA 57
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-01-08
- **Case number:** Civil Misc. Writ Petition No. 76461 of 2005
- **Bench:** Dr. B.S. Chauhan, Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-rakhan-singh-v-state-of-u-p-and-others-41144
- **Pages:** 5

## Headnote

Sri R.B. Pradhan
Sri R.K. Saxena
Sri C.B. Yadav
S.C.

Civil
Services
Rules-Art.
351-ADisciplinary Proceeding-initiation after 4
years of retirement-without permission
of Governor-held-Non-est.

Held: Para 7 & 11

In view of the facts, as noted herein
above, it is apparent that the petitioner
has been served with the charge-sheet
subsequent to his retirement without
there being an order of the Governor
permitting
the
initiation
of
the
departmental
enquiry
against
the
petitioner. It is further established that
on the date, the Governor is stated to
have
granted
the
permission
under
Article
351-A
of
the
Civil
Services
Regulations i.e. 22-11:2005 the period of
more than four years after retirement of
the petitioner had already lapsed.

In view of the law, as laid down by the
Hon'ble
Supreme
Court,
the
58 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
departmental
proceedings
initiated
against the petitioner are non est.
Case law discussed:
2007 UPLBEC (2) 1329, 2007 (1) UPLBEC-56,

## Text

1 All] Ram Rakhan Singh V. State of U.P. and others
57
respect to the Hon'ble Judge, I am not
persuaded to take the same view as taken
by Hon'ble Single Judge in Karishna
Pal's case referred hereinbefore.

49. Thus, aforesaid discussion
leaves no room for doubt to hold that the
services rendered by the petitioner on ad
hoc basis from the date of his joining as
L.T. grade teacher w.e.f. 3.11.1992 till his
regularisation on 18.8.1999 cannot be
taken into account for computing his 5
years continuous regular service for the
purposes of Rule 14(1) of 1998 Rules. It
is only on or after 18.8.1999, on his
regularisation on the post of L.T. grade
teacher his services can be counted for
continuous
regular
service
to
be
considered for his promotion on the post
of Lecturer under existing rule 14(1) of
1998 Rules. Therefore, I have no
hesitation to hold that the petitioner was
not
eligible
to
be
considered
for
promotion
either
on
the
date
of
occurrence
of
vacancy
of
English
Lecturer on 30.6.1998 or on the first day
of year of recruitment i.e. on 1.7.1997 on
account of occurrence of vacancy on
30.6.1998 or on the first day of
subsequent year of recruitment i.e. 1st
July 1998 and thereafter till completion of
5
years
continuous
regular
service
subsequent to his regularisation. It is not
in dispute that till he completes 5 years
continuous regular service, 50% quota of
promotion on the post of lecturer was
already filled in the institution. Therefore,
on this count also the writ petitions are
liable to be dismissed.

50. In view of foregoing discussions,
both the writ petitions are devoid of merit
and
are
liable
to
be
dismissed.
Accordingly,
the
same
are
hereby
dismissed.
51. There shall be no order as to
cost. The parties shall bear their own cost.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.01.2008

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 76461 of 2005

Ram Rakhan Singh

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

Counsel for the Petitioner:
Sri S.P. Sharma

Counsel for the Respondents:
Sri R.B. Pradhan
Sri R.K. Saxena
Sri C.B. Yadav
S.C.

Civil
Services
Rules-Art.
351-ADisciplinary Proceeding-initiation after 4
years of retirement-without permission
of Governor-held-Non-est.

Held: Para 7 & 11

In view of the facts, as noted herein
above, it is apparent that the petitioner
has been served with the charge-sheet
subsequent to his retirement without
there being an order of the Governor
permitting
the
initiation
of
the
departmental
enquiry
against
the
petitioner. It is further established that
on the date, the Governor is stated to
have
granted
the
permission
under
Article
351-A
of
the
Civil
Services
Regulations i.e. 22-11:2005 the period of
more than four years after retirement of
the petitioner had already lapsed.

In view of the law, as laid down by the
Hon'ble
Supreme
Court,
the
58 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
departmental
proceedings
initiated
against the petitioner are non est.
Case law discussed:
2007 UPLBEC (2) 1329, 2007 (1) UPLBEC-56,

(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. The petitioner was appointed as
Assistant Sales Tax Officer in the Trade
Tax Department of the State of Uttar
Pradesh. It is stated that the petitioner
attained the age of superannuation and
actually retired on 31-01-01. On 18th
January, 2002, the petitioner was served
with a charge-sheet bearing the date as
29th December, 2001. On receipt of the
charge-sheet, the petitioner made an
application dated 20th September, 2002
stating
therein
that
the
enquiry
proceedings were liable to be revoked.

2.

However,
the
disciplinary
proceeding initiated against the petitioner
were continued and on 15/16th January,
2003 a show cause notice was issued to
the petitioner along with an enquiry report
dated 8th March, 2002. The petitioner
submitted his reply dated 18th January,
2003 to the second show cause notice and
vide letter dated 5th April, 2003, he has
requested for revocation of the entire
proceedings.

3. By means of the impugned order
dated 22nd November, 2005 the petitioner
has been informed that the Governor of
U.P. in exercise of powers under Article
351-A of Civil Services Rules has been
pleased
to
grant
permission
for
continuation
of
the
disciplinary
proceedings against the petitioner, even
after his retirement. It is against this order
and
for
quashing
the
departmental
proceedings that this petition has been
filed.
4. On behalf of the petitioner, it is
contended that permission to continue the
disciplinary proceedings under Article
351-A of Civil Services Rules against a
government servant can be granted by the
Governor only in respect of an incident
which has taken place not more than four
years prior to the date of retirement of the
government servant. He clarifies that
having regard to the date of retirement i.e.
31st January.2001 and the date on which
the Governor is said to have granted the
permission, as communicated under letter
dated
22nd
November,
2005,
it
is
apparently clear that this prescribed
period of four years has expired in
between. In the alternative he submits that
under explanation to Article 351-A of the
Civil Services Rules, the departmental
proceedings are said to have been initiated
on the service of the charge-sheet. The
service of the charge-sheet itself had been
affected upon the petitioner subsequent to
his retirement i.e. 31st January, 2001 to be
precise on 18th January, 2002 only and
that to without there being any approval
of the Governor of the State as required
under Article 351-A of Civil Services
Rules. Therefore, the entire departmental
proceedings are vitiated and are liable to
be quashed by this Court.

5. Learned Standing Counsel in
reply submits that permission to initiate
the departmental enquiry against the
petitioner was obtained from the Minister
concerned
in
accordance
with
the
Business Regulation on 11-01-01, this
sanction of the Minister is deemed to be
on behalf of the Governor, in view of the
Business Rules/Regulation, no further
permission from the Governor in the facts
of the case was required. It is, therefore,
submitted that the letter dated 22nd
November, 2005 is superfluous and the
1 All] Ram Rakhan Singh V. State of U.P. and others
59
proceedings initiated against the petitioner
do not warrant any interference. Reliance
for the purpose has been placed upon the
judgement of the Hon'ble Supreme Court
reported in (2007) 1 UPLBEC 56; State of
U.P. & others Vs. Harihar Bhole Nath.

6. We have heard learned counsel
for the parties and have gone through the
records of the present writ petition.

7. In view of the facts, as noted
herein above, it is apparent that the
petitioner has been served with the
charge-sheet subsequent to his retirement
without there being an order of the
Governor permitting the initiation of the
departmental
enquiry
against
the
petitioner. It is further established that on
the date, the Governor is stated to have
granted the permission under Article 351A of the Civil Services Regulations i.e.
22-11:2005 the period of more than four
years after retirement of the petitioner had
already lapsed.

8. Consequently on simply reading
of Regulation 351-A the Governor could
not have granted permission for any
departmental proceedings being instituted
against the petitioner, as has been done in
the facts of the case.

9. Legal position in this regard has
been settled under the judgement and
order of Hon'ble Supreme Court in the
case of State of U.P. Vs. Sri Krishna
Pandey; AIR 1996 SC 1656, and in the
case of State of U.P. Vs. R.C. Misra; 2007
UPLBEC (2) 1329.

10. The Hon'ble Supreme Court in
the case of Sri Krishna Pandey (supra),
has held in paragraph 6 as under:

"6. It would thus be seen that
proceedings are required to be instituted
against
a
delinquent
officer
before
retirement. There is no specific provision
allowing the officer to continue in service
nor any order passed to allow him to
continue on re-employment till the
enquiry is completed, without allowing
him to retire from service. Equally, there
is no provision that the proceedings be
initiated as disciplinary measure and the
action initiated earlier would remain
unabated after retirement. If Rule 351-A
is to be operative in respect of pending
proceedings, by necessary implication,
prior sanction of the Governor to continue
the proceedings against him is required.
On the other hand, the rule also would
indicate that if the officer caused
pecuniary
loss
or
committed
embezzlement etc. due to misconduct or
negligence or dereliction of duty, then
proceedings should also be instituted after
retirement
against
the
officer
as
expeditiously as possible. But the events
of misconduct etc. which may have
resulted in the loss the Government or
embezzlement, i.e., the cause for the
institution of proceedings, should not
have taken place more than four years
before
the
date
of
institution
of
proceedings.
In
other
words,
the
departmental
proceedings
must
be
instituted before lapse of four years from
the date on which the event of misconduct
etc. had taken place. Admittedly, in this
case the officer had retired on March 31,
1987 and the proceedings were initiated
on April 21, 1991. Obviously, the event of
embezzlement which caused pecuniary
loss to the State took place prior to four
years from the date of his retirement.
Under these circumstances, the State had
disabled
itself
by
their
deliberate
omissions to take appropriate action
60 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
against the respondent and allowed the
officer to escape from the provisions of
Rule 351-A of the Rules. This order does
not
preclude
proceeding
with
the
investigation into the offence and taking
action thereon. "

The Hon'ble Supreme Court in Sri
State of U.P. Vs. R.C. Mishra (supra) in
paragraph 5 has laid down as under:

''5. ............. .........
The Substantive part of Regulation
351-A confers the power upon the
Government
of
withholding
or
withdrawing a pension or any part of it,
whether permanently or for a specified
period and the right or 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 service, including service
rendered
on
re-employment
after
retirement. There is a proviso appended
to the Regulation which circumscribes the
power conferred by the substantive part of
the Regulation. Clause (a) of the proviso
with which we are concerned here uses
the expression if not instituted while the
officer
was
on duty either before
retirement
of
during
reemployment.
Clause (a) of the proviso will, therefore,
get attracted only when the departmental
proceedings are instituted against the
officer after his retirement or when he is
not in re-employment. If the departmental
proceedings are instituted before an
officer
has
attained
the
age
of
superannuation and before his retirement,
proviso (a) can have no application. In
order to remove any doubt regarding the
date of institution of enquiry or the
judicial proceedings an Explanation has
been
appended
after
the
proviso.
According
to
Explanation
(a),
departmental
proceedings
shall
be
deemed to have been instituted (i) when
the charges framed against the officer are
issued to him, or (ii) if the officer has
been placed under suspension from an
earlier
date,
on
such
date.
By
incorporating the explanation, the rule
framing authority has notionally fixed two
dates
as
the
date
on
which
the
departmental
proceedings
shall
be
deemed to have been instituted against an
officer. A combined reading of the proviso
and the explanation would show that
there is no fetter or limitation of any kind
for instituting departmental proceedings
against on officer if he has not attained
the age of superannuation and has not
retired from service. If an officer is either
placed under suspension or charges are
issued to him prior to his attaining the
age of superannuation, the departmental
proceedings so instituted can validly
continue even after he has attained the
age of superannuation and has retired
and the limitations imposed by sub-clause
(i) or sub clause (ii) of clause (a) of
proviso to Regulation 351-A will not
apply. It is only where an officer is not
placed under suspension of charges are
not issued to him while he is in service
and
departmental
proceedings
are
instituted against him under Regulation
351-A after he has attained the age of
superannuation and has retired from
service and is not under re-employment
that the limitations imposed by subclauses (i) and (ii) of proviso (a) shall
come into play."

11. In view of the law, as laid down
by the Hon'ble Supreme Court, the
1 All] M/s Om Contractors V. State of U.P. and others
61
departmental proceedings initiated against
the petitioner are non est.

12. At this stage, we may also refer
to the judgement relied upon by the
Standing Counsel in the case of State of
U.P. Vs. Harihar Bhole Nath (2007) 1
UPLBEC 56 which according to the facts
involved herein is clearly distinguishable
for the following reasons:

13. In the aforesaid case, as noticed
by Hon'ble Supreme Court in paragraph
12 of the judgement, the employee had
been placed under suspension, before he
attained the age of superannuation.
Departmental proceedings were not only
initiated against the petitioner, an Enquiry
Officer was also appointed, subsequently
the order of suspension was stayed under
a judicial order.

14. The Hon'ble Supreme Court,
therefore, proceeded to hold that the legal
fiction created with regard to the point of
time when the enquiry proceedings would
be deemed to have been commenced, was
not affected.

15. The Hon'ble Supreme Court
proceeded to hold that under the facts and
circumstances of the case, the proceedings
stand initiated and other permission of the
Governor is not required to be obtained
for continuation of such proceedings.
Therefore, in paragraph 14 of the said
judgement the Hon'ble Supreme Court
proceeded to clarify as follows:-

"Proviso appended to Regulation
351-A
merely
controls
the
main
proceedings. The same would apply in the
exigencies of the situation envisaged
therein, namely, even the proceedings
were initiated after retirement and nor
prior thereto."

16. The writ petition is allowed. The
order dated 22nd November, 2005 as also
disciplinary proceedings initiated against
the
petitioner
are
hereby
quashed.
Respondents are directed to ensure the
payment of all retiral benefits including
the arrears thereof strictly in accordance
with the law at the earliest possible.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.11.2007

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE R.N. MISRA, J.

Civil Misc. Writ Petition No. 56218 of 2007

M/s Om Contractors

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

Counsel for the Petitioner:
Sri I.P. Singh

Counsel for the Respondents:
Smt. Sarita Singh
S.C.

Minor and Mineral Rule (Concession)
Rules
1963-Payment
of
Royaltypetitioner
purchased
stone
bolder
through agent from different leaseholder
demand of Royalty-held-illegal subject
to satisfaction of the authority on
production of receipts.

Held: Para 5

There is no provision in the aforesaid Act
and Rules regarding payment of royalty
by the purchaser of stones from the
lease holder of mines. This is for the
lease holder to pay royalty to the
Government. Nowhere, it has come that