# Ram Sumarni Varma v. The State of U.P.& Ors

- **Citation:** (2019) 1 ILRA 826
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-09
- **Case number:** Writ-A No. 20771 of 2004
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-sumarni-varma-v-the-state-of-u-p-ors-44481
- **Pages:** 11

## Headnote

C.S.C., Sri Brij Bhushan Mishra, Sri
Parmatma Rai, Sri Pursottam Rai, Sri Sunil
Kumar Mishra

A.
U.P.
Municipal
Boards
Servants
(Inquiry, Punishment and Termination of
Service) Rules (hereinafter referred to as
"Rules, 1960") published in U.P. Gazette
dated 16.04.1960- Rule 4 Rule 8 of
Rules, 1960 Fundamental Rule 54-B-
punishment of "severe warning" was
administered to the petitioner and he
was required to deposit Rs. 590/- orders
rejecting appeal and representation by
Chairman, NPP stating that he was
illegally placed under suspension for
about five years and one month and
denial of full salary for the said period is
not justified, therefore, full salary should
be paid to him for the period of
suspension.

"Severe warning" or the direction to deposit
Rs. 590/- claimed to be non-deposited part of
fee are the prescribed punishment under Rule
4- The severe warning and direction to deposit
alleged unpaid fee of Rs. 590/-, being not the
prescribed punishment, it can be said that
authorities found that any charge was so
serious as to justify imposition of even a
lightest
punishment
upon
petitioner.
Therefore, it can be said that suspension of
1 All. Ram Sumarni Varma Vs. The State of U.P. and Ors.
827
petitioner, in any manner was justified. That
be so, denial of full salary to petitioner for the
period of suspension is clearly illegal, arbitrary
and
lacks
sanction
of
Statute.
(Para
21,22,23,24,26)

Writ Petition allowed with costs.

Case Law discussed/ relied upon: -

In Vijay Singh Vs. State of U.P. and Others, JT
2012 (4) SC 105 (E-3)

## Text

826 INDIAN LAW REPORTS ALLAHABAD SERIES
C.M. Thri Vikrama Varma (supra) and
Tripurari Sharan (supra) the principle of
estoppel and waiver will not be applicable
against the legal and constitutional rights.

57. The allocation of district and
appointment and joining of the teachers in
their
respective
districts
had
been
completed in academic year 2018-19. The
said posting and allocation of district
being contrary to law and in violation of
Articles 14 and 16(1) of the Constitution
of India, cannot be sustained.

58. In view of the law laid down by
the Apex Court, the allotment of district
made by the respondents cannot be
sustained in so far as it relates to MRC
candidates and to that extent, it is
quashed.

59. The respondent no. 3 is directed to
carry on process of allotment of district to
MRC candidates only, treating them to be
reserved category candidates only for the
purposes of allotment of district of their
preference. It is further directed that the
MRC candidates who alleged that they have
not been allotted district of their preference
despite being MRC candidates, may file
their applications before the respondent no.
3 within a period of 3 months from today
and the respondent no. 3 is directed to
consider and pass necessary order, as per
law stated hereinabove within next 3
months.

60. The order passed by the
respondent no.3 shall be given effect from
next academic session, i.e., 2020-21, so that
the teaching of students is not suffered.

61. With the aforesaid directions the
writ petition is disposed off.
-------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.08.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Writ-A No. 20771 of 2004

Ram Sumarni Varma ...Petitioner
Versus
The State of U.P.& Ors. ...Respondents

Counsel for the Petitioner:
Sri A.R. Dwivedi, Sri K.K. Dubey, Sri L.C.
Mishra, Sri R.R. Dwivedi, Sri S.R. Pandey,
Sri S.S. Mishra, Sri V.K. Dubey

Counsel for the Respondents:
C.S.C., Sri Brij Bhushan Mishra, Sri
Parmatma Rai, Sri Pursottam Rai, Sri Sunil
Kumar Mishra

A.
U.P.
Municipal
Boards
Servants
(Inquiry, Punishment and Termination of
Service) Rules (hereinafter referred to as
"Rules, 1960") published in U.P. Gazette
dated 16.04.1960- Rule 4 Rule 8 of
Rules, 1960 Fundamental Rule 54-B-
punishment of "severe warning" was
administered to the petitioner and he
was required to deposit Rs. 590/- orders
rejecting appeal and representation by
Chairman, NPP stating that he was
illegally placed under suspension for
about five years and one month and
denial of full salary for the said period is
not justified, therefore, full salary should
be paid to him for the period of
suspension.

"Severe warning" or the direction to deposit
Rs. 590/- claimed to be non-deposited part of
fee are the prescribed punishment under Rule
4- The severe warning and direction to deposit
alleged unpaid fee of Rs. 590/-, being not the
prescribed punishment, it can be said that
authorities found that any charge was so
serious as to justify imposition of even a
lightest
punishment
upon
petitioner.
Therefore, it can be said that suspension of
1 All. Ram Sumarni Varma Vs. The State of U.P. and Ors.
827
petitioner, in any manner was justified. That
be so, denial of full salary to petitioner for the
period of suspension is clearly illegal, arbitrary
and
lacks
sanction
of
Statute.
(Para
21,22,23,24,26)

Writ Petition allowed with costs.

Case Law discussed/ relied upon: -

In Vijay Singh Vs. State of U.P. and Others, JT
2012 (4) SC 105 (E-3)

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

1. Sri K.K. Dubey, learned counsel
for petitioner and learned Standing
Counsel for State of U.P. and its
authorities. None appeared on behalf of
respondents-3 to 4. I, therefore, heard
above counsels appearing in the matter
and proceed to decide it ex-parte against
respondents-3 and 4.

2. This writ petition under Article
226 of Constitution of India has been filed
by sole petitioner, Ram Sumarni Verma
challenging
order
dated
02.07.2001
(Annexure-9 to the writ petition) whereby
punishment of "severe warning" was
administered to petitioner and he was
required to deposit Rs. 590/-; order dated
21.05.2002 (date is wrongly mentioned
since correct date is 04.05.2002 which is
order
passed
on
petitioner's
application/appeal and part of Annexure13 to the writ petition) rejecting his
appeal and order dated 18.06.2003 passed
by Commissioner, Jhansi Division, Jhansi
rejecting
petitioner's
representation
against aforesaid two orders.

3. Fact in brief, giving rise to the
present writ petition are, that petitioner
was working as "Nabikar and Rajaswa
Moharrir" in Nagar Palika Parishad,
Barua Sagar, Jhansi (hereinafter referred
to
as
"NPP").
Vide
order
dated
20.05.1996 passed by Executive Officer,
NPP,
petitioner
was
placed
under
suspension and, thereafter, a charge-sheet
dated 17.08.1996 (Annexure-2 to the writ
petition) was issued containing five
charges as under:-

**vkjksi la[;k 1& vki dh fu;qfDr bl
ikfydk esa uk;d dj ,oa jktLo eksgfjZj ds in ij
dh xbZ Fkh rFkk vf/k'kklh vf/kdkjh uxj ikfydk
ifj"kn] c:vklkxj vkids fu;qfDr vf/kdkjh gSA
vf/k'kklh vf/kdkjh ds vk/khu dk;Zjr jgus nkSjku
vkius fn0 29-2-1996 dks muds lkFk vHknzrk dk
O;ogkj ,oa vi'kCnks dk iz;ksx djrs gq, deZpkjh
vkpkj lafgrk dk mYya?ku fd;kA

vkjksi la[;k 2

uxjikfydk ifj"kn d:vklkxj dh v/;{k
egksn;k Jherh m"kk jkuh dq'kokgk }kjk 10-5-96 dks
dk;kZy; dk vkdfLed fujh{k.k ds le; vkidks
mifLFkfr iaftdk ij vuqifLFkr vafdr fd;k x;kA
vuqifLFkfr ds laca/k esa v/;{k egksn;k }kjk vkils
Li"Vhdj.k ekaxk x;kA vkius vius Li"Vhdj.k ekaxk
x;kA vkius vius Li"Vhdj.k esa ikfydk ds loksZPp
vf/kdkjh ds izfr ftl izdkj dh Hkk"kk dk iz;ksx
fd;k gS mlls mudh izfr"Bk ,oa lEeku dks Bsl
igqWaph gSA ikfydk ds loksZPp vf/kdkjh ,oa izfrf"Br
tu izfrfuf/k ds izfr vuknj iw.kZ Hkk"kk dk iz;ksx
djds vkius deZpkjh vkpkj lafgrk dk nwljh ckj
mYya?ku fd;k gSA

vkjksi la[;k&3

ikfydk }kjk vkidks 25-11-1994 bZ0 dks
uxjikfydk ifCyd Ldwy c:vklkxj dk fyfidh;
dk;Z fu"ikfnr djus gsrq vknsf'kr fd;k x;k Fkk
rFkk vkius ifCyd Ldwy] c:vklkxj ds fnukad 2511-1994 ls 4-4-1996 rd vkius vius fyfidh; dk;Z
dky esa vius in dk nq:i;ksx djrs gq, fuEu
foRrh; vfu;ferrk;sa dh gSa%&

1- Ldwy ds f'k{kk l= o"kZ 1994&95 es Ldwy
esa ulZjh ls ysdj d{kk 5 rd dqy 131 Nk=
v/;;ujr jgsA Ldwy ds vfHkys[kksa ds vuqlkj v)Z
okf"kZd ijh{kk 'kqYd 10@& izfr Nk= fu/kkZfjr fd;k
x;k ijUrq vki }kjk ek= 70 Nk=ksa dk gh ijh{kk
'kqYd tek djk;k x;kA bl izdkj vkius
uxjikfydk ifCyd Ldwy c:vklkxj dks 610@&
:0 dh vkfFkZd {kfr igqWapkbZ gSA
828 INDIAN LAW REPORTS ALLAHABAD SERIES

2- vkids }kjk f'k{kk l= 1995&96 esa 200
Mk;fj;kWa dz; dh xbZ Fkh ftl dh dher izfr Mk;jh
10@& Nk= ls olwy dj Ldwy dks"k esa tek djk;h
tkuh FkhA vkius pktZ gLrkUrj.k esa Jh jek'kadj nqcs
dks ek= 91 Mk;jh gLrkUrfjr dhA bl izdkj vki
}kjk 109 Mk;fj;ka Nk=ksa dks forfjr dh xbZ ftldh
dher 1090@& :0 Ldwy dks"k esa tek ugha dh
xbZA ftlls Li"V gS fd vki }kjk mDr /kujkf'k dk
xcu djds Ldwy dks vkfFkZd {kfr igqWpkbZ xbZ gSA

3- vki }kjk Ldwy dh lgk;d v/;kfidk dq0
vyds'ojh] dq0 laxhrk vxzoky o dq0 _rq dq'kokgk
dk ekg ebZ 1995 dk osru eq0 909@& psd la0
021002 fnukad 16-5-1995 dk vkgfjr fd;k x;k
ijUrq osru iaftdk ekg ebZ 1995 ds vuqlkj ek=
dq0 vyds'ojh jkBkSj dk osru eq0 284@& :0 gh
forfjr fd;k tkuk n'kkZ;k x;k gS] 'ks"k eq0 625 :0
pktZ gLrkUrj.k rd u rks forjfr dh xbZ vkSj uk
gh Ldwy dks"k esa okfil tek djk;k x;k bl izdkj
vki }kjk mDr /kujkf'k dk xcu fd;k x;kA

4- uxjikfydk ifCyd Ldwy esa vkids dk;Zjr
jgus ds nkSjku vki dk Hkrhtk Jh fot; flag
fujatu d{kk izFke esa v/;;ujr jgk rFkk vki gh
mDr Nk= ds laj{kd jgs ijUrq vkius vius Hkrhts
dh Ldwy Qhl ekg tuojh 1996 ls twu 1996 rd
50@& :0 izfrekg dh nj ls 300@& okf"kZd ijh{kk
'kqYd :0 20@& dqy :i;k 320@& tek ugha
djk;k x;k gSA bl izdkj vkius vius in dk
nq:i;ksx djrs gq, Ldwy dk :i;k 320@& dh
vkfFkZd {kfr igqWapkbZ gSA

vkjksi la[;k 4

vkius vius Ldwy ds fyiidh; dk;Zdky esa
Ldwy cSad [kkrs ls fuEu /kujkf'k;ksa dk vkgj.k fd;k
gS%&

1- psd la[;k&066792 fnukad 13-12-94 eq0 1]
500-00 :i;s v)Zokf"kZ ijh{kk vfxzeA

2- psd la[;k 066800 fnukad 1-5-95 eq0 22000 :i;s Nk=ksa dh fonkbZ vfxzeA

3- psd la[;k&21003 fnukad 19-3-98 eq0
1]000-00 :i;s okf"kZd ijh{kk iqjLdkj fooj.kA

4- psd la[;k 021006 fnukad 10-7-1995 eq0
500-00 :i;s vfxzeA

5- psd la[;k 021009 fnukad 27-7-1995 eq0
225-00 :i;s

psd la[;k 021013 fn0 23-9-95 eq0 2500-00
:i;s & Jh y[kuyky iBsfj;k ,MoksdsV >kWalhA

6- psd la[;k 021017 fn0 6-11-95 eq0 :0
0338-00 d{kk rhu dk iathdj.kA

ijUrq vki }kjk pktZ gLrkUrj.k esa mDr
vkgfjr /kujkf'k ls lEcfU/kr i=kofy;kWa pktZ
gLrkUrj.k ugha dh x;h gSa vkSj vkt rd mDr
/kujkf'k;ksa ds O;; dh lek;kstu i=kofy;kWa okmpj
vkfn izLrqr ugha fd;k gSA mDr /kujkf'k;ksa ds
vkgj.k ds lEcfU/kr i=kofy;ksa dk izLrqr u djus
ls u dsoy vkidh dk;Zi)fr o lr;fu"Bk lafnX/k
gS cfYd vki mDr /kujkf'k;ksa ds xcu ds fy;s nks"kh
gSaA

vkjksi la[;k 5

ikfydk dk;kZy; psd la[;k 066488 fnukad
3-7-1992 }kjk eq0 2]000@& :i;s fjV la[;k
10203@92 txUukFk izlkn vxzoky cuke uxj
ikfydk c:vk lkxj] okn dh mPp U;k;ky;
bykgkckn dh iSjoh gsrq cSad ls vkgfjr fd;s x;s
rFkk mDr /kujkf'k U;k;ky; izfdz;k gsrq vkidks
fnukad 4-7-1992 dks ikfydk }kjk gLrxr djk;h
x;h Fkh ijUrq vki us vkt rd mDr /kujkf'k ds
O;; okmpj lek;kstu i=koyh esa izLrqr ugha dh
ftlls mDr /kujkf'k ds viO;; fd;s tkus ds dkj.k
vkidh Hkwfedk lafnX/k gSA**

"Charge No. 1: You were appointed
on the post of Nayab Kar Rajasva
Moharrir in this Nagar Palika Parishad,
and the Executive Officer, Nagar Palika
Parishad, Barua Sagar is your appointing
officer.
While
working
under
the
Executive Officer, you on 29.02.1996
behaved with him in an undignified
manner and used foul language, thereby
violating the employees code of conduct.

Charge No. 2: At the time of sudden
surprise of the office made by Shri Usha
Rani Kushwaha, Chairperson of Nagar
Palika
Parishad,
Karua
Sagar
on
10.05.1996, you were recorded on the
attendance register to be absent. An
explanation
was
sought
by
the
chairperson regarding your absence. You
have in your explanation used such a
language for the highest authority of the
Palika as to adversely affect her prestige
and reputation. You have by using
insulting language towards the highest
authority of the Palika and reputed public
1 All. Ram Sumarni Varma Vs. The State of U.P. and Ors.
829
representative violated the employees
code of conduct for the second time.

Charge No. 3: You were on
25.11.1994 directed by the Palika to
discharge clerical duties for Nagar Palika
Public School, Barua Sagar. You have
while performing your clerical duties at
Public
School
Barua
Sagar
from
25.11.1994 to 04.04.1996 misused your
office and committed the following
irregularities:

1. In the academic session 1994-95
of the school, total 131 students from
nursery to class V were studying in the
school. As per the school records, the
annual examination fee was fixed to be
Rs. 10 per student. But examination fee of
70 students only were got deposited by
you. In this way, you have caused
financial loss of Rs. 610 to Nagar Palika
Parishad School, Barua Sagar.

2. In the academic session 1995-96,
200 diaries had been purchased by you
for which Rs. 10 per diary was to be
realized from the students and was to be
deposited in the school funds. In course of
transfer of charge, you handed over just
91 diaries to Shri Rama Shankar Dubey.
In this way, 109 diaries were distributed
by you to the students prices whereof to
the tune of Rs. 1090 was not deposited in
the school funds. This goes to show that
you have embezzled the said amount, thus
causing financial loss to the school.

3. Salaries of Km. Alkeshwari, Km.
Sangeeta
Agarwal
and
Km.
Ritu
Kushwaha, Asstt. Teachers of the school,
for the month of May, 1995, totalling Rs.
909, were withdrawn by you through
Cheque No. 021002 dated 16.05.1995 but
as per the Salary Register for the month
of May, 1995, the salary to the tune of Rs.
284 only is shown to have been disbursed
to
Km.
Alkeshwari
Rathore.
The
remaining Rs. 625 was neither disbursed
nor deposited back into the school funds
till the transfer of charge. In this way, the
said amount has been embezzled by you.
4. In course of your stint at Nagar Palika
Public School, your neice Shri Vijay
Singh Niranjan was studying in Class I
and it was you who was a guardian for
the said school. But you have not
deposited your neice's school fees for the
months of January, 1996 to June, 1996 at
the rate of Rs. 50 per month totalling Rs.
300 and his annual fee of Rs. 20,
aggregating to Rs. 320. In this way, you
have misused your office, thus causing
financial loss of Rs. 320.

Charge No. 4:

You have in course of your stint as
clerk at your school withdrawn the
following
amounts
from
its
bank
accounts:

1.
Cheque
No.
066792
dated
13.12.1994 to the tune of Rs. 1,500.00:
Half-yearly Examination Advance.

2.
Cheque
No.
066800
dated
01.05.1995 to the tune of Rs. 220.00:
Students Farewell Advance.

3.
Cheque
No.
21003
dated
19.03.1998 to the tune of Rs. 1,000.00:
Annual Examination Prize Distribution.

4.
Cheque
No.
021006
dated
10.07.1995 to the tune of Rs. 500.00:
Advance.

5.
Cheque
No.
021009
dated
27.07.1995 to the tune of Rs. 225.00

Cheque
No.
021013
dated
23.09.1995 to the tune of Rs. 2500.00:
Shri Lakhan Lal Patheria, Advocate,
Jhansi.

6.
Cheque
No.
021017
dated
06.01.1995 to the tune of Rs. 0338.00:
Class III Enrolment.

But the records pertaining to the
aforesaid amounts withdrawn have not
830 INDIAN LAW REPORTS ALLAHABAD SERIES
been handed over by you in course of
transfer of charge and the records,
vouchers etc. pertaining to the adjustment
of the aforesaid spendings have not been
presented so far. Non presentation by you
of
the
records
pertaining
to
the
withdrawal of the said amounts casts
doubts not only on your way of working
but on your integrity as well. As a matter
of fact, you are guilty of embezzling the
said amounts.

Charge No. 5:

For pursuing Writ No. 10203/1992:
Jagannath Prasad Agarwal Vs. Nagar
Palika Barua Sagar at the Allahabad
High Court, Rs. 2000 was withdrawn
through
cheque
no.
066488
dated
03.07.1992 of the Palika Office. The said
amount was handed by the Palika to you
on 04.07.1992 for the said Court process.
But you have not so far presented the
voucher as to spending of the said amount
so as to be on the adjustment file. For the
reason of the said amount thus being
wasted, your role is doubtful."
(English Translation by Court)

4. Petitioner moved an application
dated 06.07.1996 requesting respondent-4
to supply certain documents mentioned in
the said letter. Said letter reads as under:-

^^vkjksi la[;k 1 ds leFkZu esa izLrkfor fuEu
vfHkys[kks dh izfr;ka miyC/k djkus dh d`ik djsaA

1- deZpkjh x.k Jh Tokyk izlkn Lo.kZdkj
ofj"B fyfidA

2- Jh jes'k pUnz >k fyfidA

3- Jh jkds'k ckcw jk; uk;c dj jktLo
eksgfjZjA

4- Jh ghjkyky dq'kokg uk;c dj jktLo
eksgfjZjA

5- Jh tkfdj vyh pijklh ds c;ku dh
izfr;kWaA

vkjksi la[;k 2%& dfFkr tkap vf/kdkjh dh
fjiksVZ

vkjksi la[;k 3%& esa ldwy ls lEcfU/kr
i=kofy;kWa ,oa dS'k cqd 'kqYd jftLVjA

f'k{k.k 'kqYd cqds vkfn fujh{k.k gsrq fnykus dh
d`ik djsaA** " Kindly provide copies of the
following documents proposed to be used
in support of charge no. 1:

Copies
of
statements
of
the
employees

1. Shri Jwala Prasad Swarnkar,
Senior Clerck

2. Shri Ramesh Chandra Jha, Clerck

3. Shri Rakesh Babu Rai, Nayab Kar
Rajasva Moharrir

4. Shri Heera Lal Kushwah, Nayaba
Kar Rajasva Moharrir

5. Shri Zakir Ali, Peon

Kindly
ensure
to
provide
for
inspection:

Charge No. 2: Report of the said
inquiry officer

Charge No. 3: Records such as Cash
Book Fee Register, Tuition Fee Books etc.
pertaining to the school."
(English Translation by Court)

5. Petitioner submitted letter dated
06.09.1996 requesting respondent-4 to
supply documents relied on in the charges
and, thereafter, permit time to submit
reply to charge-sheet.

6. A reminder for documents was
given on 20.09.1996. It appears that
petitioner
continued
to
demand
documents but did not submit any reply to
the
charge-sheet.
He
has
made
a
complaint vide letter dated 12.08.1998.

7. A notice was published in daily
newspaper
"Dainik
Bhasker"
dated
17.12.1998 that documents desired by
petitioner sought to be served upon him
on 17.11.1998 by Special Messenger but
1 All. Ram Sumarni Varma Vs. The State of U.P. and Ors.
831
petitioner was not found at his address.
Thereafter, documents were sent by
registered post which was also received
back unserved, hence, petitioner is given a
weeks' time to approach Office and
collect
documents
so
that
enquiry
proceedings are concluded, expeditiously.

8. It is not stated anywhere in the
writ petition that petitioner approached
office
of
authorities
concerned
for
collecting documents, as directed in the
aforesaid notice. Instead, petitioner again
sent an application dated 18.12.1998,
served in the office of respondent on
22.12.1998,
making
demand
of
documents.

9.

Thereafter
on
21.01.1999,
petitioner submitted reply denying all the
charges.

10. It appears that an enquiry report
was submitted by Enquiry Officer on
02.07.2001.
Thereafter
respondent-4
passed order dated 02.07.2001 reinstating
petitioner
without
salary
and
also
administering a "severe warning" for
committing a misconduct of showing
indecent
behaviour
with
Appointing
Authority. With reference to charge-2,
petitioner was directed to deposit Rs.
590/- in the Treasury of Nagar Palika
Public School.

11. Pursuant to said order, petitioner
joined on 02.07.1991 and also assured
respondent-4
that
he
shall
deposit
requisite amount and submit report.
Joining report submitted by petitioner i.e.
Annexure-10 to the writ petition dated
02.07.2001 reads as under:-

^^fuosnu gS fd vkids cgkyh vkns'k la0 89
fnukad 2-7-2001 ds vuqikyu esa eSa vkt fnukad 2-72001 dks iwokZUg viuh ;ksxnku vk[;k izLrqr djrk
gwWaA d`i;k esjs ;ksxnku vk[;k Lohdkj dj eq>s dk;Z
ij ysus dk d"V djsaA vkns'k esa mfYyf[kr /kujkf'k
eSa 'kh?kz gh tek dj vuqikyu vk[;k izLrqr dj
nwWaxkA**

"It is submitted that in compliance
with your reinstatement order no. 89
dated 02.07.2001, I in the forenoon of this
02.07.2001 present my joining memo.
Kindly allow my joining memo and take
me on duty. I shall at the earliest present
compliance report after depositing the
amount mentioned in the order."
(Emphasis Added)
(English Translation by Court)

12. Thereafter, vide letter dated
20.08.2001, petitioner made an appeal to
Chairman, NPP stating that he was
illegally placed under suspension for
about five years and one month and denial
of full salary for the said period is not
justified, therefore, full salary should be
paid to him for the period of suspension.

13. By letter dated 14.03.2002,
petitioner
requested
respondent-4
to
supply copy of enquiry report.

14. A reminder was submitted by
petitioner on 20.04.2002 to Chairman,
NPP requesting for payment of full salary
for the period of suspension.

15. On the aforesaid letter dated
20.04.2002,
Chairman,
NPP
passed
following
order,
which
is
part
of
Annexure-13 to the writ petition, as
under:-

^^eSaus lEiw.kZ i=koyh dk voyksdu fd;kA
okndkjh ds izR;kosnu esa fuyEcu dky dk osru
fgr ykHk ikus dk Bksl vk/kkj ugha gS vkSj u gh
lR;rk ,oa fo'oluh;rk dk cks/k gksrk gSA QyLo:i
izR;kosnu fujLr fd;s tkus ;ksX; gSA vr% okndkjh
dk vihy izR;kosnu fujLr fd;k tkrk gSA**
832 INDIAN LAW REPORTS ALLAHABAD SERIES

" I perused the entire file. In the
representation of the litigant, there is no strong
ground for availing the benefit of salary for the
period of suspension and it reflects neither
truthfulness nor credibility. As a result, the
representation is liable to be rejected. Hence,
the appeal/representation of the litigants is
rejected."
(English Translation by Court)

16. Against order of denial of full
salary to petitioner for the period of
suspension, he made a representation
before Commissioner, Jhansi Division,
Jhansi vide letter dated 05.10.2002. The
same has been rejected by Commissioner
vide letter dated 17.07.2003.

17. Aforesaid orders of denying full
salary to petitioner for the period of
suspension have been challenged in the
present writ petition.

18. It is contended that denial of full
salary to petitioner is not one of the
punishment prescribed under Rules and,
therefore, when petitioner was reinstated
without imposing any punishment and
that too without holding guilty of charges,
denial of full salary to petitioner for the
prolonged period of five years and one
month is patently illegal, arbitrary and
contrary to law.

19. Respondent-NPP has contested the
matter by filing counter affidavit in which
basic facts are not disputed. It is, however,
said that petitioner has been rightly denied
full salary for the period of suspension since
charges of misbehaviour with Appointing
Authority and non deposit of full fee during
service period were found proved.

20. In the rejoinder affidavit filed by
petitioner, he has reiterated what he has
said in the writ petition and, therefore, I
am not repeating the same.

21. The provisions pertaining to
disciplinary action against servants of
Municipal Board have been made in U.P.
Municipal Boards Servants (Inquiry,
Punishment and Termination of Service)
Rules (hereinafter referred to as "Rules,
1960") published in U.P. Gazette dated
16.04.1960 . Punishment which can be
imposed upon servants of Municipal
Board are provided under Rule 4 which
reads as under:-

"4. Subject to the provisions of these
rules and any law governing a Municipal
Board, the following penalties may, for
good and sufficient reasons, be imposed
upon
a
servant
by
the
competent
authority, namely-

(i) Censure.

(ii)
Withholding
of
increments,
including stoppage at an efficiency bar.

(iii) Reduction to a lower post or a
time-scale, or to a lower stage in a time
scale.

(iv) Suspension.

(v) Removal from service of the
municipal
board
which
does
not
disqualify for future employment.

(vi) Dismissal from the service of the
municipal
board
which
ordinarily
disqualifies for future employment.

(vii) Fine (in case of servants
appointed under Section 75 of the U.P.
Municipalities Act only) : Provided that
the total amount of such fine shall not
ordinarily exceed and a half month's pay
of the employee fined and it shall be
deducted from his pay in instalments not
exceeding one-quarter of a month's pay.

Explanation.-The discharge-

(a) of a person appointed on
probation, during or at the end of the
1 All. Ram Sumarni Varma Vs. The State of U.P. and Ors.
833
period of probation, in accordance with
the terms of the appointments and the
rules governing the probationary service,
or

(b) of a person appointed otherwise
than under contract to hold a temporary
appointment, on the expiration of the
period of the appointment, or

(c) of a person appointed otherwise
than under contract to hold a temporary
appointment, for an unspecified period, in
accordance with the provisions or Rule
11, or

(d) of a person engaged under
contract, in accordance with the terms of
his control, does not amount to removal
or dismissal within the meaning of this
rule or of Rule 5."

22. It does not appear that a "severe
warning" or the direction to deposit Rs.
590/- claimed to be non deposited part of
fee are the prescribed punishment under
Rule 4. Therefore, it cannot be said that
respondents have found petitioner guilty
of any misconduct so as to impose upon
him penalty prescribed under the Rules.

23. In other words, it can be said
that petitioner has not been imposed any
penalty prescribed under the Rules but has
been reinstated in service. Suspension and
the amount payable to servant of
Municipal
Board
during
period
of
suspension is governed by Rule 8 of
Rules, 1960 which reads as under:-

"8.(1) Subject to the provisions of
any law governing the municipal board, a
servant against whose conduct an inquiry
is contemplated or is proceeding, may, in
the discretion of the competent authority
be placed under suspension pending the
conclusion of the enquiry.

Note.- As a rule, suspension should
not be ordered unless the allegations
against the servant are so serious that in
the event of their being established they
may ordinarily be expected to warrant his
dismissal, removal or reduction in rank.
Suspension, where deemed necessary,
should, as far as possible, immediately
proceeded the framing of charges and
their communication to the servant
charged.

(2) When a servant is suspended, he
shall be given a subsistence allowance
during the period of suspension. The
amount of such allowance shall be
governed by rules as applicable to
Government servants."

24. Rule 8(2), therefore, by
reference bring in the corresponding
Rules applicable to Government servants
and it takes this Court to Fundamental
Rule 54-B which deals with issue of
payment of full salary during the period
of suspension and it 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
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
834 INDIAN LAW REPORTS ALLAHABAD SERIES
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 subrule(5) the period of suspension shall not
be treated as a period spent on duty
unless
the
competent
authority
specifically directs that 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
proceedings proviso shall be absolute
and no higher sanction shall be
necessary for the grant of -

(a) Extraordinary leave in excess of
five years in the case of permanent
Government servant.

(b) Leave of any kind in excess of
five years in the case of permanent
Government servant.
1 All. Ram Sumarni Varma Vs. The State of U.P. and Ors.
835

(8) The payment of allowances
under sub-rule(2), sub-rule(3) or subrule(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
ofreinstatement 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." (Emphasis Added)

25. The full salary during the period
of suspension, can be denied to a
Government servant when a suspension is
not found wholly unjustified.

26. In the present case, as already
discussed, no punishment prescribed
under Rules has been imposed upon
petitioner, therefore, it cannot be said that
suspension of petitioner was justified in
any manner. This is fortified from the fact
that
Rule
8
clearly
provides
that
suspension shall not be resorted unless the
allegations against Municipal servant are
so serious that in the event of their being
established
they
may
ordinarily
be
expected
to
warrant
his
dismissal,
removal or reduction in rank. Suspension,
therefore, ought to be resorted when there
is a possibility of imposition of major
penalty of dismissal, removal or reduction
in rank but in the present case, enquiry
has
resulted
in
imposition
of
no
prescribed penalty at all. The severe
warning and direction to deposit alleged
unpaid fee of Rs. 590/-, being not the
prescribed punishment, it can be said that
authorities found that any charge was so
serious as to justify imposition of even a
lightest
punishment
upon
petitioner.
Therefore, it can be said that suspension
of petitioner, in any manner was justified.
That be so, denial of full salary to
petitioner for the period of suspension is
clearly illegal, arbitrary and lacks sanction
of Statute.

27. It is also well settled that a
punishment not prescribed under the
Rules, could not have been imposed as
has been propounded by Supreme Court
in Vijay Singh Vs. State of U.P. and
Others, JT 2012 (4) SC 105.

28. In the result, impugned order
dated 02.07.2001 and appellate orders, in
my view, cannot be sustained. Writ
petition is allowed. Impugned orders
dated
02.07.2001,
04.05.2002
and
18.06.2003 are hereby set aside to the
extent that petitioner has been imposed
punishment which are not prescribed in
the Rules and the same has been upheld
in appeal by Appellate Authority.

29. Petitioner shall be entitled to full
salary during the period of suspension
which shall be computed and paid within
three months. Petitioner shall also be
836 INDIAN LAW REPORTS ALLAHABAD SERIES
entitled to cost which I quantify to Rs.
5,000/- against respondents- 3 and 4.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.12.2016

BEFORE
THE HON'BLE RAKESH SRIVASTAVA, J.

Service Single No. 30419 of 2016

Girish Kumar Gupta ...Petitioner
Versus
State of U.P. &Ors. ...Respondents

Counsel for the Petitioner:
P.K. Mishra

Counsel for the Respondents:
C.S.C., Neeraj Chaurasia

A. Article 226 of the Constitution of India
- U.P. Recruitment of Dependent of
Government Servant Dying in Harness
Rules, 1974-Section 12 of the Hindu
Adoption and Maintenance Act, 1956-
Delay and latches.

Delay of more than 19 years from the date of
death of the deceased employee in filing the
writ petition- Absence of any satisfactory
explanation- Since the crisis was over the
Petitioner cannot be offered compassionate
appointment- A person who has been adopted
after the death of the employee would not be
entitled to the benefit of the appointment on
compassionate grounds
 (Para 5,9,12,14,20,22,25,27)

Writ petition dismissed.

Case Law discussed/relied upon: -

1. State of M.P. v. Nandlal Jaiswal, (1986) 4
SCC 566

2. City and Industrial Development Corpn. v.
Dosu Aardeshir Bhiwandiwala, (2009) 1 SCC
168

3. Gian Singh Mann v. High Court of Punjab &
Haryana, (1980) 4 SCC 266

4.Karnataka
Power
Corpn.
Ltd.
v.
K.
Thangappan, (2006) 4 SCC 322

5. T.N. v. Seshachalam, (2007) 10 SCC 137

6. Umesh Kumar Nagpal v. State of Haryana &
Ors, (1994) 4 SCC 138

7. Union of India &Ors. v. Bhagwan Singh,
(1995) 6 SCC 476

8. State of J&K &Ors. v. Sajad Ahmed Mir,
(2006) 5 SCC 766

9. Eastern Coalfield Limited v. Anil Badyakar
&Ors., (2009) 13 SCC 112

10. Jai Prakash Vs. State of U.P. &Anr. 2003
(53) ALR 197 (E-3)

(Delivered by Hon'ble Hon'ble Rakesh
Srivastava, J.)

1. One Surya Lal, an Assistant
Teacher at NirmalaJunior High School,
Chitauna Kala, District Ambedkar Nagar
unfortunately
died
in
harness
on
01.09.1997 leaving behind his widow
Nirmala Devi.

2. On 19.12.2016, after almost 19
years and 3 months to be precise, Girijesh
Kumar Gupta, the petitioner, claiming
himself to be the adopted son of Surya Lal
has preferred this writ petition praying
inter alia for the following relief:-

(i) Issue a writ, order or direction in
the nature of mandamus commanding to
the opposite parties to appoint the
petitioner on compassionate ground under
Dying in Harness Rules due to death of
his father late Surya Lal as per his
qualification, in the interest of justice.