# Ramesh Chandra Pal v. State of U.P. & Ors

- **Citation:** (2023) 9 ILRA 376
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-22
- **Case number:** Writ-A No. 6176 of 2023
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramesh-chandra-pal-v-state-of-u-p-ors-50799
- **Pages:** 7

## Headnote

A. Service Law - UP Secondary Education
(Services Selection Boards) Act, 1982 -
Sections 18(1) & 18(2) - Regulations -
Ch. II, Reg. 3 - Officiating Principal -
Seniority - Power of DIOS, when can be
exercised - No failure on the part of
Committee of Management in promoting
senior most teacher - Effect - Held, the
impugned order is erroneous as the power
under sub-Section (2) of Section 18 can be
exercised only when the Management fails
to promote the senior most teacher -
Further held, the order is bad in law,
inasmuch as, while deciding the seniority,
the principle as laid down in Regulation
3(bb) read with Regulation 3(g) have
been completely overlooked by the DIOS.
(Para 19)

Writ petition allowed. (E-1)

## Text

376 INDIAN LAW REPORTS ALLAHABAD SERIES
because it will be seen as exceptional
circumstance where disciplinary authority
would record that for reasons genuine and
convincing the disciplinary proceedings could
not be concluded and, therefore, it is required
that the proceedings be continued even after
retirement, but there is no such provision under
the
rules
governing
the
disciplinary
proceedings. In this context, learned counsel for
the respondent could not point out any rule,
circular or executive instructions even, which
may provide for continuance of disciplinary
proceedings even after the retirement of the
petitioner or any other employee of the
corporation. Then again, the question will be
that how a punishment is to be imposed as the
punishment is awarded only against an
employee unless and until employer and
employee relationship exists, the order of
punishment upon a retired employee cannot be
imposed except otherwise provided under the
rules. Even in matters of recovery, it is not open
for the department to deduct any amount from
retiral dues in absence of any rules giving any
such authorization.

26. From the above discussions, it is
apparent that since the petitioner has attained
the age of superannuation and no provision in
law is shown which permits the disciplinary
authority to examine the conduct of an
employee, now, so as to pass an order of
punishment, there would be no purpose in
remitting back the matter to the disciplinary
authority
for
a
fresh
consideration
of
petitioner's conduct leading to his conviction.
Such a course would be legally impermissible.

27. The relief to be granted to the
petitioner in such circumstances will have to be
determined by this Court in view of what has
been observed in para-127 of the Constitution
Bench judgment in Tulsiram Patel (supra). The
Court will have the jurisdiction to pass
necessary order in respect of the penalty, which
in its opinion would be just and proper in the
circumstances of the case.

28. In the facts of the present case the
petitioner has been dismissed from service on
18.3.2016 and has attained the age of
superannuation on 31.12.2018. He has admittedly
not worked during this period. The proceedings
against the petitioner, consequent upon his
conviction in an offence under Section 307 I.P.C.
cannot be said to be without jurisdiction or
arbitrary, on facts. The order of dismissal has
been found wanting on account of nonconsideration of petitioner's conduct leading to his
conviction and has been set aside, for such
reasons. The petitioner would be entitled to all
service and retiral benefits including continuity
excluding salary between 18.3.2016 to 31.12.2018
by applying the principles of 'no work no pay'. It is
however reiterated that the period between
18.3.2016 to 31.12.2018 shall be counted for
payment of retiral benefits."

31. Therefore, in light of facts of this case
and legal proposition set by the Courts,
respondents are directed to pay the post retiral
dues to petitioner including pension and other
dues permissible under the law within three
months from the date of production of certified
copy of this order.

32. Accordingly Writ Petition is allowed.

33. No order as to costs.
----------
(2023) 9 ILRA 376
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.08.2023

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ-A No. 6176 of 2023

Ramesh Chandra Pal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
9 All. Ramesh Chandra Pal Vs. State of U.P. & Ors.
377
Counsel for the Petitioner:
Girsh Chandra Verma, Pawan Kumar Pandey

Counsel for the Respondents:
C.S.C., Ghanshyam Verma

A. Service Law - UP Secondary Education
(Services Selection Boards) Act, 1982 -
Sections 18(1) & 18(2) - Regulations -
Ch. II, Reg. 3 - Officiating Principal -
Seniority - Power of DIOS, when can be
exercised - No failure on the part of
Committee of Management in promoting
senior most teacher - Effect - Held, the
impugned order is erroneous as the power
under sub-Section (2) of Section 18 can be
exercised only when the Management fails
to promote the senior most teacher -
Further held, the order is bad in law,
inasmuch as, while deciding the seniority,
the principle as laid down in Regulation
3(bb) read with Regulation 3(g) have
been completely overlooked by the DIOS.
(Para 19)

Writ petition allowed. (E-1)

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. The Vakalatnama filed by Sri R.D.
Shahi on behalf of the respondent no.7 is
taken on record. The short counter affidavit
filed on behalf of the respondent no.7 is
also taken on record.

2. Heard Sri G.C. Verma and Sri
Pawan Kumar Pandey, learned Counsel for
the petitioner as well as Sri Ran Vijay
Singh, learned Standing Counsel and Sri
R.D. Shahi and Sri Ghanshyam Verma,
learned Counsel appearing on behalf of
respondent no.7.

3. The respondent no.6 has been
added without any basis, as such, he is
scrolled off from the array of parties and in
view of the documents submitted, there is
no need to hear the respondent no.5.

4. The present petition has been filed
challenging the order dated 25/28.07.2023
(Annexure No.1 to the petition), whereby
the respondent no.7 has been given the
charge of officiating Principal superseding
the claim of the petitioner, as claimed by
him.

5. The facts in brief are that the
petitioner was appointed as an L.T. Grade
Teacher
on
03.02.2004
whereas
the
respondent no.7 was appointed as an L.T.
Grade
Teacher
on
07.12.2004.
Subsequently, both the petitioner as well as
the respondent no.7 was promoted on
13.03.2012 to the post of Lecturer,
however, the respondent no.7 took the
charge as a Lecturer on 13.03.2012 whereas
the
petitioner
took
the
charge
on
14.03.2012. The date of birth of the
petitioner is 09.09.1970 and that of the
respondent no.7 is 05.08.1971.

6. The contention of the Counsel for
the petitioner is that in the institution in
question, one Rajendra Prasad Sharma, the
lecturer, was officiating as Principal and
subsequently, on having expressed his
inability to continue any further, a dispute
arose in between the petitioner and the
respondent no.7 with regard to the claim
for the post of officiating Principal in the
institution in question. It is argued by the
Counsel for the petitioner that the petitioner
being senior to the respondent no.7, was
eligible for being recommended by the
Committee
of
Management
for
appointment to the post of officiating
Principal,
which
was
done
by
the
Committee of Management and on the
recommendation so made, an order came to
be passed on 30.09.2011 appointing the
petitioner as an officiating Principal. The
said order passed by the Committee of
Management is on record (Annexure-18 to
378 INDIAN LAW REPORTS ALLAHABAD SERIES
the writ petition). It is argued that in
pursuance to the said recommendations
made in favour of the petitioner, the
signatures of the petitioner were attested as
is clear from the letter dated 18.10.2019
(Annexure-20 to the writ petition).

7. It is argued that an order issued by
the
respondent
no.4
on
25.09.2019
directing the Management for appointment
of the senior most lecturer as an ad hoc
Principal and in pursuance thereof, the
consequential
order
passed
by
the
respondent
no.5,
Committee
of
Management to the effect that as per
seniority, the petitioner was appointed as an
officiating Principal, came up for challenge
in Writ Petition No.28823 (SS) of 2019. In
the said writ petition, directions were
issued for filing of the counter affidavit
initially and subsequently on 06.11.2019,
certain directions were issued in the said
writ petition. The order dated 06.11.2019 is
annexed as Annexure-22 to the writ
petition. Later on, the said writ petition
came to be dismissed as withdrawn on
11.01.2023.

8. It is argued that in the meanwhile,
Sri Rajendra Prasad Sharma, who had
earlier expressed his inability to function as
an officiating Principal, was appointed as a
regular Principal by the Commission and
probably because of the said, the writ
petition was dismissed as withdrawn. It is
admitted in between the parties that
subsequently, Sri Rajendra Prasad Sharma
only continued for a period of two months
and thereafter, once again a vacancy arose
in the office of the Principal of the
institution in question and once again the
claim of the petitioner arose in view of the
seniority list issued by the Committee of
Management once again indicating that the
petitioner was the senior most to the
respondent no.7. He further argues that the
request was also made by the Committee of
Management for attesting the signatures of
the petitioner. Without considering the said
request, the impugned order came to be
passed holding that as the respondent no.7
had taken charge on 13.03.2012 as a
lecturer, he was senior to the petitioner and
accordingly issued order appointing the
respondent no.7 as an ah hoc Principal of
the institution in question, the said order is
impugned herein.

9. In respect to the challenge to the
order impugned, Sri G.C. Verma, learned
Counsel appearing on behalf of the
petitioner argues that in terms of the
mandate of Section 18 of the U.P.
Secondary Education (Services Selection
Boards) Act, 1982 (in short "the 1982
Act"),
it
is
incumbent
upon
the
Management to notify a vacancy to the
Board for filling the post of the Principal or
the Headmaster and in case, the said
vacancy is not filled up for a period of two
months, the Management is empowered to
fill up such vacancy on ad hoc basis by
promoting to the senior most teacher.

10. The Section 18(2) of the 1982 Act
provides that in the event, the Management
fails to promote the senior most teacher
under sub-Section (1), the Inspector is
authorized to issue an order of promotion
of such teacher and the teacher concerned
shall be entitled to get salary as the
Principal or the Headmaster.

11. For the sake of remedy, Section
18(1) and (2) of the 1982 Act are quoted
below:

"18.
Ad
hoc
Principals
or
Headmasters. (1) Where the Manage- ment
has notified a vacancy to the Board, in
9 All. Ramesh Chandra Pal Vs. State of U.P. & Ors.
379
accordance with sub- section (1) of Section
10 and the post of the Principal or the
Headmaster actually remained vacant for
more than two months, the management
shall fill such vacancy on purely ad hoc
basis by promoting the senior- most
teacher.

(a) in the lecturer's grade in respect of
a vacancy in the post of the Principal.

(b) in the trained graduate's grade in
respect of a vacancy in the post of the
Headmaster.

(2) Where the Management fails to
promote the seniormost teacher under subsection (1) the inspector shall himself issue
the order of pro- motion of such teacher
and the teacher concerned shall be entitled
to get his salary as the Principal or the
Headmaster, as the case may be, from the
date he joins such post is pursuance of such
order of promotion."

12. Sri G.C. Verma, learned Counsel
appearing on behalf of the petitioner further
argues that for the purpose of determination
of seniority, the provisions are contained in
Chapter-II of the Regulation framed under
the 1982 Act. He places reliance on
Regulation 3 of the Chapter-II, which is
quoted herein below:

"3 (1) The Committee of Management
of every institution shall cause a seniority
list of teachers to be prepared in accordance
with the following provisions-

(a) The seniority list shall be prepared
separately for each grade of teachers
whether permanent or temporary, on any
substantive post;

(b) Seniority of teachers in a grade
shall be determined on the basis of their
substantive appointment in that grade. If
two or more teachers were so appointed on
the same date, seniority shall be determined
on the basis of age;

(bb) Where two or more teachers
working in a grade are promoted to the
next higher grade on the same date, their
seniority inter se shall be determined on
the basis of the length of their service to
be reckoned from the date of their
substantive appointment in the grade from
which they are promoted:

Provided that if such length of service
is equal, seniority shall be determined on
the basis of age.

(c) A teacher in a higher grade shall be
deemed to be senior to a teacher in the
lower grade irrespective of the length of
service;

(d) If a teacher who is placed under
suspension is reinstated on his original post
his original seniority in the grade shall not
be affected;

e) Every dispute about the seniority of
the teacher shall be referred to the
Committee of Management which shall
decide the same giving reasons for the
decision;

(f) उपिण्ि (ङ) िे अधीि प्रबन्ध सकमकत िे कवकिश्चय
से व्यकथत िोई अध्यापि ऐसा कवकिश्चय ऐसे अध्यापि िो
सूकचत किये िािे िे कदिांि से 15 कदि िे भीतर सम्बकन्धत
क्षेत्रीय उप कशक्षा किदेशि िो अपीि िर सिता ह , और
अपीि पर सम्बकन्धत पक्षों िो सुिवाई िा अवसर देिे िे
उपरान्त उप कशक्षा किदेशि अपिा किणगय िारण सकहत देर्ा, िो
अकन्तम होर्ा और प्रबन्ध सकमकत द्वारा िायागकन्वत किया िायेर्ा
।

(g) यकद एि ग्रेि में िायगरत दो या अकधि अध्यापि
किसी एि ही कतकथ पर पदोन्िकत किए िाएाँ तो उििी ज्येष्ठता
िा आधार उस ग्रेि िा सेवािाि होर्ा, किसमें वे िायगरत थे,
परन्तु यकद सेवािाि बराबर ह , तो पदोन्िकत िो दशा में आयु
िे आधार पर ज्येष्ठता किधागररत िी िायेर्ी ।

(2) The seniority list shall be revised
every year and the provisions of Clause (1)
shall mutatis mutandis apply to such
revision."

13. In the light of the said two
provisions, in nutshell, the argument of the
380 INDIAN LAW REPORTS ALLAHABAD SERIES
learned Counsel for the petitioner is that
there was no occasion for the respondents
to
pass
an
order
as
the
situation
contemplated under Section 18(2) did not
arise. He argues that the Committee of
Management had recommended the name
of the petitioner in terms of the powers
conferred upon the Management under
Section 18(1) of the 1982 Act and the
powers under Section 18(2) could only be
exercised, if the Management failed to
exercise power under Section 18(1) and
therefore, the order impugned deserves to
quash on that ground alone.

14. In addition to the said arguments,
the Counsel for the petitioner Sri G.C.
Verma argues that the Regulation 3 (bb)
and
the
Regulation
3(g)
specifically
provide for the manner for determining
seniority, where there are two or more
teachers working in a same grade and are
promoted on the same date. It also provides
the manner in which the seniority shall be
determined inter se in between two or more
teachers. In the light of the said, he argues
that admittedly both the petitioner and the
respondent
no.7
were
promoted
on
13.03.2012 and admittedly, the length of
service of the petitioner from the date of
the substantive appointment was more than
that of the respondent no.7 and in that case,
the claim of the petitioner was rightly
acknowledged by the Management and
duly recommended. He further argues that in
the impugned order, the date of taking charge
has been referred to for the purpose of
determining the seniority, which is contrary
to the mandate of Regulation 3(bb) and
Regulation 3 (g) of the Chapter-II. He also
argues that although there is a dispute with
regard to taking charge, however, even for the
sake of argument, the same is treated to be
correct, the same would have no relevance in
view of the crystal clear provisions contained
in Regulation 3(bb) and the Regulation 3(g)
of the Chapter-II.

15. In sum and substance, on the basis
of the submissions recorded above, he argues
that it is the petitioner, who is the senior most
teacher and should be permitted to continue
as an ad hoc Principal and the order
impugned is contrary to the mandatory
scheme and thus, is liable to be quashed. He
also argues that the petitioner was senior in
age to the respondent no.7, which is also
relevant in view of the proviso to Regulation
3(bb) of the Chapter-II.

16. Sri R.D. Shahi, learned Counsel
appearing on behalf of the respondent no.7,
on the other hand, has filed a short counter
affidavit and places on record, a copy of the
seniority list allegedly sent by the Committee
of Management on 10.05.2016 wherein the
respondent no.7 is shown to be senior to the
petitioner on the basis of the date of
promotion, which in the case of respondent
no.7 is recorded as 13.03.2012 whereas in the
case of the petitioner, it is recorded as
14.03.2012. It is also argued that on the basis
of the said seniority list, the claim of the
respondent no.7 for the appointment to the
post of ad hoc Principal was wholly justified
and the impugned order does not require any
interference as substantive justice has been
done. He further argues that the impugned
order itself records that no seniority list was
submitted by the Committee of Management,
thus, the respondent was well within his right
to exercise the power as are vested by virtue
of Section 18(2) of the 1982 Act. He thus
argues that the writ petition is liable to be
dismissed.

17. Sri Ran Vijay Singh, learned
Counsel appearing on behalf of the DIOS,
on the basis of the instructions, which has
been handed over across the bar, argues
9 All. Ramesh Chandra Pal Vs. State of U.P. & Ors.
381
that the Committee of Management did not
furnish any seniority list, despite repeated
requests. He further argues that against the
same impugned order, the petitioner has
already approached the Joint Director of
Education through his representation dated
05.08.2023, as such, the petitioner cannot
be
permitted
to
avail
simultaneous
remedies before two different forums and
accordingly, the writ petition should be
dismissed on that ground also. In short, he
tries to justify the order by arguing that the
Committee of Management failed to fulfill
the requirement which are stipulated in
Section 18(1) and thus, the exercise of
powers under Section 18(2) is justified.

18. Sri G.C. Verma, in rejoinder to the
arguments raised by the Counsel for the
respondents, argues that in terms of the
provisions of Section 18 of the 1982 Act as
well as the provisions as contained in ChapterII, although an appeal is provided with regard
to the determination of seniority, the same is
confined to any order of determination of
seniority passed by the Committee of
Management and no appeal or representation
or any other remedy is provided either in the
Act or in the Regulations in respect of the
passing of the order of the nature impugned as
has been done in the present case. He argues
that the communication dated 05.08.2023 can
at best be treated as complaint against the
action of the DIOS and cannot be equated with
the remedy available under law in respect of
an order passed under the statutory provisions.
He further argues that remedy of appeal is a
creation of the statutes and unless specifically
provided for cannot be termed as a remedy
against an order and thus, the writ petition
would lie and has been rightly filed by the
petitioner.

19. Considering the submissions
made at the bar and recorded above and
after going through the pleadings including
the writ petition, the short counter affidavit
as well as the instructions handed over by
Shri Ran Vijay Singh, what emerges is that
the DIOS has exercised the power vested in
him under Section 18(2) of the 1982 Act
without recording that any request or
appointment was made by the Committee
of Management which is required under
Section 18(1). The impugned order merely
records that the seniority list despite
repeated requests has not been furnished by
the Committee of Management. The same
is erroneous as the power under subSection (2) of Section 18 can be exercised
only when the Management fails to
promote the senior most teacher, which is
not the case in the present scenario where
the Management had sent a request for
attestation of signatures of the petitioner.
The order is further bad in law, inasmuch
as, while deciding the seniority, the
principle as laid down in Regulation 3(bb)
read with Regulation 3(g) have been
completely overlooked by the DIOS as he
has determined the seniority based upon the
date of taking charge, which is neither
contemplated nor provided for either under
Regulation 3 (bb) or the Regulation 3(g).
Admittedly the petitioner is senior to the
respondent no.7 in terms of the age, the
appointment of the petitioner in the L.T.
Grade being prior in point of time than the
respondent no.7 and both the petitioner and
the respondent no.7 were promoted on the
same date to the post of lecturer i.e. on
13.03.2012, thus, these aspects ought to
have been considered, even if, for the sake
of argument, it is presumed that the DIOS
has passed the order under Section 18(2)
which clearly has not been done. The order
being contrary to the mandate of Section
18(1), 18(2) and in complete violation of
the mandate of provisions of Regulation 3
382 INDIAN LAW REPORTS ALLAHABAD SERIES
(bb) and Regulation 3 (g) of Chapter-II
cannot be sustained and is quashed.

20. The matter is remitted to the
DIOS to pass an order on the request made
by the Committee of Management with
regard to the attestation of signatures.

21. The respondent no.7 would be at
liberty to challenge any seniority list sent
by the Management in terms of the powers
of appeal conferred under Regulation 3(f)
of the Chapter-II, if he is so advised.

22. Needless to say that the final order
passed on a challenge in appeal, if any,
shall govern the issue with regard to the
appointment of the ad hoc Principal in
future. The DIOS shall pass fresh orders as
directed above within a period of two
weeks.

23. In the meanwhile, the petitioner,
who is prima facie senior to the respondent
no.7 shall continue to work as officiating
Principal till the fresh order is passed as
directed above.

24. In view above, the writ petition
stands allowed.
----------
(2023) 9 ILRA 382
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.08.2023

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE SYED QAMAR HASAN RIZVI, J.

Writ-C No. 6637 of 2019

Anil Kumar Sharma & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Petitioners:
Sri Atul Srivastava

Counsel for the Respondents:
C.S.C.

Held -
Where the report of illegal soil excavation was
made ex parte without presence of the
petitioner or independent witnesses and where
the excavation was admittedly less than two
meters in depth, no offence of illegal mining
was made out in light of the Government Order
dated 24.12.2012. The said G.O. clarifies that
manual digging not exceeding two meters in
depth does not amount to mining operation.
Further, petitioner being a farmer had only
levelled the field for irrigation purposes.
Authorities acted arbitrarily and in violation of
natural justice. Orders of District Magistrate and
Commissioner
as
well
as
the
Revisional
Authority quashed.

Case Law Discussed:

Ramvir Singh Vs St. of U.P. & ors., 2016 (132)
RD 121

Key Words -
Illegal excavation - Soil levelling by farmer -
Government Order dated 24.12.2012 - No
excavation beyond two meters - Natural justice
- Inspection without notice or witnesses -
Penalty - Arbitrary action - Quashing of
proceedings.

Law Point -
Manual soil digging for agricultural land levelling
not exceeding two meters in depth is not mining
under U.P. Minor Minerals Rules, in view of G.O.
dated
24.12.2012.
Action
without
proper
inspection in presence of affected party or
independent witnesses violates principles of
natural justice.

(Delivered by Hon'ble Syed Qamar Hasan
Rizvi, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel for
the State-respondents.