# Siraj Hussain v. State of U.P. & Anr

- **Citation:** (2024) 7 ILRA 1495
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-23
- **Case number:** Writ-A No. 7162 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/siraj-hussain-v-state-of-u-p-anr-52220
- **Pages:** 10

## Headnote

A. Service Law - Dismissal - Uttar Pradesh
Police Officers of the Subordinate Ranks
(Punishment and Appeal) Rules 1991-
Rule 14(1) - Condonation of delay -
Jurisdiction - The Deputy Inspector General of
Police, Lucknow Range, Lucknow had no
business to speak or opine contrary to the
orders of the Division Bench dated 21.09.2016.
The order dated 21.09.2016 passed by the DB
became final inter partes as it was never
challenged by the respondents before the
Supreme Court. May be the proviso to sub- Rule
(6) of Rule 20 was not brought to their
Lordships' notice but whatever be the position
of the statute once the judgment has
become final inter partes, it was the
Appellate
Authority's
duty
to
have
considered the explanation for the delay
on merits, while deciding the delay
condonation application in the appeal
afresh, pursuant to the command of this
Court.

Appellate Authority could not have relied on
Rule 20(6) of the Rules and hold the appeal
again to be barred by an uncondonable period
of limitation. The reason is that the State
Government have not exercised their powers
u/Rule 25 of the Rules with some remarks on
merits upholding the impugned order of the
Disciplinary Authority. If the Appellate Authority
is directed to decide the delay condonation
matter in the appeal afresh with a possibility
where the appeal may be held competent after
condonation of delay, Appellate Authority would
be required to sit in judgment over the
correctness of the remarks of the State
Government carried in the impugned order
dated 01.02.2022, or at least would be licensed
to opine contrary to the State Government. This
would not only be anomalous but illegal. It is for
this reason, the validity of the order passed by
the Appellate Authority dated 14.02.2017 has
not been looked into. (Para 11, 12)

B. Jurisdiction - There is absolutely no
power or jurisdiction with the Additional
Chief Secretary to comment on the record
or proceedings of this Court in the
slightest measure. Even if there was an error
apparent in the orders passed by this Court, it is
both beyond ken and jurisdiction of the
Additional Chief Secretary to say that this Court
has committed an error apparent and Counsel
for the petitioner misguided this Court into
passing the order dated 06.09.2018. The proper
course for the Additional Chief Secretary was to
have understood the order in the best way
possible within the limits of his jurisdiction and
decide the matter without commenting on the
worth or validity of this Court's order. The
remarks about the order incorrectly mentioning
that the petitioner had been punished with a
censure instead of dismissal and virtually
castigating our order for an error apparent, is to
say
the
least,
the
most
undesirable
transgression of hierarchy in jurisdiction by the
Additional Chief Secretary. (Para 14)

C.
Maintainability
of
representation
u/Rule 25 of the Rules, 1991 - The second
part of reasoning carried in the impugned order
dated 01.02.2022, is flawed for

## Text

7 All. Siraj Hussain Vs. State of U.P. & Anr.
1495
हनयुहक्तय ाँ की ज एांगी, तो ऐस हनणुय िी मनम न य अक रण
हनणुय निीं कि ज सकत ।

37. हिशेष योग्यत ि िे पदों, यथ पुस्तक िय ध्यक्ष,
के स्तर क उधनयन हकसी िी प्रक र से एक जनहित हिरोधी हनणुय
निीं कि ज सकत । िोक पदों की योग्यत के स्तर क उधनयन
िोकहित के हिपरीत न िोकर िोकहित को बढ़ ि देने ि ि प्रि ि
रखेग ।

38. जि ाँ तक आिोच्य आदेश को इस आध र पर
चुनौती दी गयी िै हक यि ररट-ए सांख्य -5390 िषु 2022 के
आदेश के प्रहतकूि िै, ररट-ए य हचक सांख्य -5390 िषु 2022
के हनणुय हदन ांक 05.12.2022 द्व र इस धय य िय ने िी यि
छूट दी थी हक यहद र ज्य के प्र हधक री अधयथ मत के िों, तो िि
अपन हनणुय िेने के हिए स्ितांत् िोंगे, हकधतु हनणुय िेते समय उधिें
धय य िय के हनणुय हदन ांक 05.12.2022 में की गयी हटप्पहणयों
को ध्य न में रखन िोग ।

39. जबहक इस धय य िय ने अपने हनणुय हदन ांक
05.12.2022 में स्ियां िी र ज्य के प्र हधक ररयों को इस
धय य िय के हनणुय से हिधन हनणुय िेने की छूट प्रद न की थी, तो
ऐसी पररहस्थहत में आिोच्य आदेश हदन ांक 23.03.2024 की
िैधत इस धय य िय के हनणुय हदन ांक 05.12.2022 में की गयी
हटप्पहणयों के स थ िी सम्पूणु सांगत हिहध-व्यिस्थ के आिोक में
िी हकय ज न च हिए तथ आिोच्य आदेश म त् इस आध र पर
हनरस्त िोने योग्य निीं िै हक र ज्य के हकसी प्र हधक ररयों ने इस
धय य िय के आदेश हदन ांक 05.12.2022 में उ०प्र० अधीनस्थ
सेि चयन आयोग द्व र प्रक हशत पररण म के िम में हनयुहक्त देने के
स्थ न पर य हचक कत ुगण क प्रत्य िेदन हनरस्त कर हदय ।

40. आिोच्य आदेश में यि कहथत िै हक
पुस्तक िय ध्यक्ष के पद क स्तर उधनयन िोने के पि त्
पुस्तक िय ध्यक्ष के पद के हिज्ञ पन/चयन/िती की क युि िी को
स्थहगत रखे ज ने िेतु हनदेश िय ने हदन ांक 12.02.2018 तथ
हदन ांक 16.02.2018 को उ०प्र० अधीनस्थ सेि चयन आयोग
से अनुरोध हकय थ तथ इसके पि त् िी हनदेश िय ने हिहिधन पत्
हदन ांक 28.07.2018, 11.12.2018, 16.12.2018,
30.05.2019, 04.09.2019, 19.02.2021 एिां
23.10.2021 को उ०प्र० अधीनस्थ सेि चयन आयोग को
उपरोक्त िहणुत हस्थहत से अिगत कर ते ि ए पुस्तक िय ध्यक्ष बैण्ड
िेतनम न रु० 5,200/- से 20,200/- एिां ग्रेड िेतन रु०
2,800/- के 69 पदों पर हिज्ञ पन/चयन/िती की क युि िी को
स्थहगत हकये ज ने िेतु हनरांतर पत् च र हकय गय , हकधतु उ०प्र०
अधीनस्थ सेि चयन आयोग ने हनदेश िय के पत्ों को सांज्ञ न में
निीं हिय और न िी इस सांदिु में कोई पृच्छ की एिां हिहखत
परीक्ष तथ स क्ष त्क र करके चयन पररण म घोहषत कर हदय । ऐसी
पररहस्थहत में यि निीं कि ज सकत हक हनयोक्त -हनदेशक
तकनीकी हशक्ष प्रश सहनक अकमुण्यत के दोषी िैं। यहद उ०प्र०
अधीनस्थ सेि चयन आयोग सेि योजक के ब र-ब र पत् हिखने के
पि त् िी चयन प्रहिय को आगे चि त रि , तो म त् इस क रण
से सेि योजक ऐसी चयन प्रहिय के आध र पर हनयुहक्त देने के हिए
ब ध्य निीं िोंगे, हजसको इस क रण रोकने क हनदेश हदय गय थ
हक प्रश्नगत पदों के स्तर क उधनयन िो गय िै।

41. उपरोक्त समीक्ष के आिोक में इस धय य िय क
यि हनहित मत िै हक म त् एक ऐसी चयन प्रहिय , जो िषु 2016
तत्समय हिद्यम न हनयमों के आध र पर कम शैहक्षक योग्यत ध रण
करने ि िे अभ्यहथुयों को कम िेतनम न के समूि 'ग' के
पुस्तक िय ध्यक्ष के पद पर चयन के हिए प्र रम्ि हकय गय थ , में
चयन के आध र पर हनयुहक्त प ने क कोई हनहित अहधक र निीं िै,
जबहक चयन प्रहिय इस आध र पर रोके ज ने क हनणुय हिय गय
हक अहखि ि रतीय तकनीकी हशक्ष पररषद् तथ र ज्य सरक र ने
पुस्तक िय ध्यक्ष के पद क स्तर उधनयन कर हदय िै और उच्चीकृत
स्तर के हिए उ०प्र० िोक सेि आयोग ने एक हिज्ञ पन प्रक हशत
करके चयन प्रहिय प्र रम्ि कर दी।

42. ररट य हचक सांख्य -6738 िषु 2024 तथ
7788 िषु 2024 बििीन िै एिां तदनुस र ननरस्त की ज ती िै।
----------
(2024) 7 ILRA 1495
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.07.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 7162 of 2023

Siraj Hussain ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Mr. Alok Mishra
1496 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
C.S.C.

A. Service Law - Dismissal - Uttar Pradesh
Police Officers of the Subordinate Ranks
(Punishment and Appeal) Rules 1991-
Rule 14(1) - Condonation of delay -
Jurisdiction - The Deputy Inspector General of
Police, Lucknow Range, Lucknow had no
business to speak or opine contrary to the
orders of the Division Bench dated 21.09.2016.
The order dated 21.09.2016 passed by the DB
became final inter partes as it was never
challenged by the respondents before the
Supreme Court. May be the proviso to sub- Rule
(6) of Rule 20 was not brought to their
Lordships' notice but whatever be the position
of the statute once the judgment has
become final inter partes, it was the
Appellate
Authority's
duty
to
have
considered the explanation for the delay
on merits, while deciding the delay
condonation application in the appeal
afresh, pursuant to the command of this
Court.

Appellate Authority could not have relied on
Rule 20(6) of the Rules and hold the appeal
again to be barred by an uncondonable period
of limitation. The reason is that the State
Government have not exercised their powers
u/Rule 25 of the Rules with some remarks on
merits upholding the impugned order of the
Disciplinary Authority. If the Appellate Authority
is directed to decide the delay condonation
matter in the appeal afresh with a possibility
where the appeal may be held competent after
condonation of delay, Appellate Authority would
be required to sit in judgment over the
correctness of the remarks of the State
Government carried in the impugned order
dated 01.02.2022, or at least would be licensed
to opine contrary to the State Government. This
would not only be anomalous but illegal. It is for
this reason, the validity of the order passed by
the Appellate Authority dated 14.02.2017 has
not been looked into. (Para 11, 12)

B. Jurisdiction - There is absolutely no
power or jurisdiction with the Additional
Chief Secretary to comment on the record
or proceedings of this Court in the
slightest measure. Even if there was an error
apparent in the orders passed by this Court, it is
both beyond ken and jurisdiction of the
Additional Chief Secretary to say that this Court
has committed an error apparent and Counsel
for the petitioner misguided this Court into
passing the order dated 06.09.2018. The proper
course for the Additional Chief Secretary was to
have understood the order in the best way
possible within the limits of his jurisdiction and
decide the matter without commenting on the
worth or validity of this Court's order. The
remarks about the order incorrectly mentioning
that the petitioner had been punished with a
censure instead of dismissal and virtually
castigating our order for an error apparent, is to
say
the
least,
the
most
undesirable
transgression of hierarchy in jurisdiction by the
Additional Chief Secretary. (Para 14)

C.
Maintainability
of
representation
u/Rule 25 of the Rules, 1991 - The second
part of reasoning carried in the impugned order
dated 01.02.2022, is flawed for the reason that
in the Additional Chief Secretary's opinion, the
petitioner's remedy u/Rule 25 of the Rules was
barred because he had appealed the order of
punishment,
which
excluded
the
State
Government's power u/Rule 25 whereas in this
case, there was really no appeal ever
carried by the petitioner. The petitioner
did attempt to lodge an appeal with the
Appellate
Authority
praying
for
condonation of delay, which was twice
denied. All that was dealt with by the Appellate
Authority was a delay condonation application,
which he rejected, in consequence whereof no
appeal can be said to have ever been instituted
by the petitioner against the Disciplinary
Authority's order u/Rule 20 of the Rules. If there
was no appeal ever competently instituted
against the order of the Authority of first
instance, the clause in Rule 25 excluding the
State Government's jurisdiction to exercise
power u/Rule 25 does not come into play at all.
(Para 16)

D. The remedy u/Rule 25 is of wide import
casting a duty on the State Government to
see that no injustice is done. The State
Government must satisfy themselves if
the Establishment has discharged its
burden of bringing home the charge by
evidence, both documentary and oral,
7 All. Siraj Hussain Vs. State of U.P. & Anr.
1497
after fixing a date, time and place for
holding
an
inquiry.
These
are
the
procedural aspects, which must be gone
into by the State Government while
deciding
the
petitioner's
statutory
representation u/Rule 25 of the Rules.
The quantum of punishment, and if it is
disproportionate, would always be open to
the State Government to consider while
making their orders afresh u/Rule 25.

The petitioner has been denied his right of
appeal and revision on the technical ground of
delay u/Rules 20 and 23 of the Rules. In this
case, virtually the State Government while
exercising powers u/Rule 25 would be doing a
review of the order of punishment passed by
the Disciplinary Authority. It has, therefore, to
consider the matter almost as carefully as would
be expected of the Appellate Authority, if not
precisely by the same procedure. On the basis
of contentions raised, the procedural fairness,
the evidence appearing against the petitioner,
the
tenability
of
his
defence
based
on
documents that the petitioner has offered to
justify his absence, must all be carefully
scrutinized to affirm, modify or pass any other
order u/Rule 25 of the Rules. It cannot be done
by the State Government at least in this case by
cryptic remarks that the petitioner has shown
nothing that may demonstrate his innocence as
to the charge. (Para 17)

Writ petition succeeds and is allowed in part.
The impugned order dated 01.02.2022 passed
by the State Government is hereby quashed.
The petitioner's statutory representation u/Rule
25 of the Rules is restored to the State
Government's file to be decided afresh within 6
weeks of receipt of a copy of this order.

Present
petition
assails
order
dated
01.02.2022,
passed
by
State
Government.(E-4)

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

1. The petitioner is a dismissed
Constable of the Uttar Pradesh Police. If
there is anything to his cause, it is that he
has never been heard on the merits of his
challenge by any of the departmental fora
of appeal and revision with all of them
throwing out his case either on limitation or
some other ground of maintainability.

2. The facts giving rise to this
petition are these:

The
petitioner
was
a
Constable in the Civil Police. He
was appointed on 01.02.1982 and
worked up to the year 2010, when
he was dismissed from service. The
petitioner
was
placed
under
suspension pending inquiry vide
order dated 17.02.2005 on the
charge of unauthorized absence
from duty. A charge-sheet was
served upon the petitioner on
10.05.2008 under Rule 14(1) of
The Uttar Pradesh Police Officers
of
the
Subordinate
Ranks
(Punishment and Appeal) Rules,
1991 (for short, 'the Rules'). The
Inquiry
Officer,
appointed
to
inquire into the charges, submitted
his report on 21.11.2008. The
petitioner, on the basis of findings
of
the
Inquiry
Officer,
was
dismissed by the Superintendent of
Police, Lakhimpur Kheri vide order
dated 28.05.2010.

3. The petitioner carried a
departmental appeal impugning the order of
his dismissal from service passed by the
Superintendent of Police last mentioned
under Rule 20 of the Rules. The Deputy
Inspector General of Police, Lucknow
Range, Lucknow, before whom the appeal
came up, dismissed the same vide order
dated 30.11.2012 on ground that it was
barred by an uncondonable period of
limitation. The petitioner challenged the
appellate order by instituting a claim
1498 INDIAN LAW REPORTS ALLAHABAD SERIES
petition before the Uttar Pradesh Public
Service Tribunal, bearing No.426 of 2012.
The Tribunal by their judgment and order
dated 22.12.2015 held that the appeal being
preferred before the Appellate Authority
beyond the prescribed period of limitation
of 90 days, which the Appellate Authority
refused to condone, the Tribunal could do
nothing in the matter. The power of
condonation was vested with the Appellate
Authority,
which
had
declined
the
condonation of delay. The Tribunal held
further that since the remedy of appeal had
not been exhausted by the petitioner by
preferring a competent appeal within the
prescribed period of limitation, the claim
petition
was
one
instituted
without
exhausting the statutory alternative remedy.
It was on this rather queer logic that the
Tribunal dismissed the claim petition.

4. The petitioner challenged the
Tribunal's judgment before this Court by
means of Writ Petition No.4229 (S/B) of
2016. A Division Bench off this Court vide
judgment and order dated 21.09.2016
quashed the order of the Appellate
Authority,
rejecting
the
petitioner's
statutory appeal as barred by time, as well
as
the
Tribunal's
judgment
dated
22.12.2015 and restored the appeal to the
Appellate
Authority's
file
for
reconsideration,
bearing
in
mind
the
observations carried in the order of the
Division Bench. When the petitioner's
appeal came up before the Appellate
Authority, to wit, the Deputy Inspector
General
of
Police,
Lucknow
Range,
Lucknow afresh on 14.02.2017, it was
rejected again substantially on the ground
of
an
uncondonable
limitation.
The
petitioner challenged the order passed by
the Appellate Authority by means of a
revision under Rule 23 of the Rules to the
Inspector General of Police, Lucknow
Zone, Lucknow. The Inspector General
dismissed the revision vide order dated
12.05.2017 with the remark that the appeal
was rightly dismissed as barred by
limitation.

5. The petitioner preferred a
representation dated 10.08.2017 under Rule
25 of the Rules to the State Government.
The State Government passed an order
dated
14.08.2017
directing
the
Superintendent of Police, Kheri to look into
the petitioner's case on humanitarian
ground and take appropriate action with
regard to his reinstatement in service. It
appears that at this stage the petitioner filed
a writ petition before this Court being Writ
Petition No.25392 (S/S) of 2018, seeking a
direction to the State Government to dispose
of his representation under Rule 25 of the
Rules. In the said petition, by way of an
instance of a similar order being passed, copy
of an order passed in Writ Petition No.7419
(S/S) of 2018 was annexed, which related to a
case of a censure. It is possibly on account of
the said reason that in the order of this Court
dated 06.09.2018, deciding Writ Petition
No.25392 (S/S) of 2018, there is a mention
that the petitioner was awarded the minor
punishment of censure. Be that as it may, this
Court, vide order dated 06.09.2018 passed in
the writ petition last mentioned, directed the
State Government in terms that if any
application has been filed by the petitioner to
the Government under Rule 25 of the Rules,
a decision as to whether it is inclined to
exercise its power under Rule 25 or not be
recorded within a period of six weeks from
the date a certified copy of the order made in
the aforesaid writ petition was submitted to
the Government. The petition was disposed
of in terms of the aforesaid orders.

6. The State Government vide
order dated 01.02.2022 dismissed the
7 All. Siraj Hussain Vs. State of U.P. & Anr.
1499
petitioner's statutory representation under
Rule 25 holding: firstly, that the order of
this Court dated 06.09.2018 passed in Writ
Petition No. 25392 (S/S) of 2018 was
incorrect in that, that this Court was wrong
in observing that the petitioner was
awarded the minor penalty of a censure
whereas he had been dismissed from
service,
whereagainst
he
had
unsuccessfully filed an appeal and revision
to the Statutory Authorities, both of which
were rejected as time barred. It was also
observed in the order impugned passed by
the State Government that the order dated
06.09.2018 was secured by the petitioner
by presenting incorrect facts. Secondly, by
the order impugned, the State Government
has declined to exercise power under Rule
25 of the Rules on the ground that the
remedy under Rule 25 was not open to the
petitioner as he had appealed his order of
dismissal and his remedy before the State
Government under Rule 25 did not lie.
Thirdly, after all these remarks, the State
Government in a paragraph has said that
the petitioner has not been able to show
anything as to how the charge of
unauthorized absence from duty for a
period of 849 days, 22 hours and 40
minutes found established against him by
the Authorities below, is incorrect. The
Government in the last part of their order
have endeavoured to discard the petitioner's
case on merits.

7. Aggrieved by the order
impugned dated 01.02.2022 passed by the
State Government, this petition has been
instituted
under Article
226
of
the
Constitution.

8. A notice of motion was issued
on 27.09.2023 and after a stop order passed
on 27.10.2023, a counter affidavit on behalf
the State was filed on 03.11.2023. When
the matter came up before this Court on
24.01.2024, the learned Counsel for the
petitioner waived his right to file a
rejoinder. Accordingly, the petition was
admitted to hearing, which proceeded on
that day with the matter being adjourned
for further hearing to 25.01.2024. On
25.01.2024,
hearing
concluded
and
judgment was reserved.

9. Heard Mr. Alok Mishra, learned
Counsel for the petitioner and Mr. Jogendra
Nath Verma, learned Standing Counsel
appearing on behalf of the respondents.

10. Upon hearing learned Counsel
for the parties, this Court is constrained to
remark that while it is true that the
Appellate Authority does not have powers
to condone a delay beyond six months at all
under sub-Rule (6) of Rule 20 of the Rules
going by the proviso appended to the subRule, the Division Bench of this Court vide
judgment and order dated 21.09.2016,
while disposing of Writ Petition No.4229
(S/B) of 2016, remarked and ordered:

"In view of the aforesaid
submissions, we have examined the
order dated 30 November 2012,
passed by the Deputy Inspector
General of Police, Lucknow Range,
Lucknow and
found
that
the
appellate authority had considered
the provisions of Rules as well as
the limitation for filing the appeal,
but definitely he did not notice the
reasons for condonation of delay
explained by the petitioner in para
27 of the memo of appeal, whereas
we are of the view that the
appellate authority was under
obligation to consider the same and
pass an appropriate order after
considering the reasons explained
1500 INDIAN LAW REPORTS ALLAHABAD SERIES
by the petitioner. Therefore, we feel
it appropriate to quash the order
dated 30 November 2012, passed
by the appellate authority as well
as the order dated 22 December
2015,
passed
by
the
learned
Tribunal and restore the appeal to
the
record
of
the
appellate
authority for his reconsideration in
view of the observations made
above.
It is clarified that we have
not given any finding on the merit
of the case or on the explanations
submitted by the petitioner before
the appellate authority to explain
the delay."

11. The Division Bench clearly
restored the appeal to the file of the
Appellate Authority after quashing its
earlier order dismissing the appeal as time
barred made on 30.11.2012 and the
judgment of the Tribunal dated 22.12.2015
affirming it. Apparently, the Division
Bench ordered the delay condonation
matter to be considered on merits. May be
the proviso to sub-Rule (6) of Rule 20 was
not brought to their Lordships' notice, but
there is no gainsaying the fact that the order
dated 21.09.2016 passed by the Division
Bench
became
final
inter
partes.
Admittedly, the order of the Division
Bench dated 21.09.2016 passed in Writ
Petition No.4229 (S/B) of 2016 was never
challenged by the respondents before the
Supreme Court. Whatever be the position
of the statute once the judgment has
become final inter partes, it was the
Appellate
Authority's
duty
to
have
considered the explanation for the delay on
merits,
while
deciding
the
delay
condonation application in the appeal
afresh, pursuant to the command of this
Court.
Nevertheless,
the
Appellate
Authority observed as follows while
rejecting the petitioner's appeal vide order
dated 14.02.2017:

"(2) इस हनयम ििी के हनयम 20(6)
के प्र िध न में अपीि अहधक री को दश ुये गये अच्छे
क रणों से अपीि अिहध को केिि छः म स तक क
अहधक र प्रद न करते िै तथ छः म स के उपर धत इस
अिहध को बढ़ ने क क्षेत् हधक र अपीिीय अहधक री
को हनहित निीं िै। चूाँहक य ची द्व र अपनी अपीि 01
िषु 23 हदन उपर धत प्रस्तुत हकय िै अतः इस
हनयम ििी में अपीिीय अहधक री को इस अिहध में
हकसी िी हस्थहत में महषुत करने क अहधक र प्र प्त निीं
िै। अतः अपीिकत ु क यि तकु हिहधक दृहष्ट से
स्िीक र हकये ज ने योग्य निीं िै।
(3) अहििेख से ऐस स्पष्ट िोत िै हक
अपीिकत ु द्व र म ० उच्च धय य िय के समक्ष सिी
हिहधक एिां तथ्य त्मक हस्थहत को प्रस्तुत निीं हकय
गय िै। हजसके अनुस र हकसी िी हस्थहत में अपीिीय
अहधक री को अपीि की अिहध छः म स से अहधक
बढ़ ने क अहधक र प्र प्त निीं िै तथ अपीि प्रस्तुत
करने में ि आ हििम्ब 01 िषु 23 हदिस क िै।"

12. Whatever be the position of the
law, the Deputy Inspector General of
Police, Lucknow Range, Lucknow had no
business to speak or opine contrary to the
orders of the Division Bench dated
21.09.2016. The only course open to him
was to examine the delay condonation
application
on
merits
regarding
the
explanation for the delay in preferring the
appeal. He could not have relied on the
proviso to sub-Rule (6) of Rule 20 of the
Rules and hold the appeal again to be
barred by an uncondonable period of
limitation. We would not have hesitated to
quash the order of the Appellate Authority
and ordered the Deputy Inspector General
to have decided the delay condonation
matter on its merits afresh in accordance
with the orders of the Division Bench in
Writ Petition No.4229 (S/B) of 2016, but
we think that, that course of action may
7 All. Siraj Hussain Vs. State of U.P. & Anr.
1501
now not be feasible. The reason is that the
State Government have not exercised their
powers under Rule 25 of the Rules with
some remarks on merits upholding the
impugned
order
of
the
Disciplinary
Authority, though again in an anomalous
exercise of jurisdiction, which would be
shortly pointed out. Now, if we direct the
Appellate Authority to decide the delay
condonation matter in the appeal afresh
with a possibility where the appeal may be
held competent after condonation of delay,
we would be requiring the Appellate
Authority to sit in judgment over the
correctness of the remarks of the State
Government carried in the impugned order
dated 01.02.2022, or at least licensing the
Appellate Authority to opine contrary to the
State Government. This would not only be
anomalous but illegal. It is for this reason
that we refrain from going into the validity
of the order passed by the Appellate
Authority dated 14.02.2017.

13. So far as the order of the State
Government is concerned, it is apparent
that in accordance with the executive rules
of business, an Additional Chief Secretary
to the Government has acted on their behalf
in
deciding
the
petitioner's
statutory
representation under Rule 25 of the Rules.
In the first part of the order, the Additional
Chief Secretary has virtually held the order
of this Court dated 06.09.2018 passed in
Writ Petition No.25392 (S/S) of 2018 to be
suffering from an error apparent, in
concluding the first part, with a remark that
this Court was misguided by the petitioner
in passing the order. This part of the
Additional Chief Secretary's order reads:

"6- प्रश्नगत प्रकरण में म ० उच्च
धय य िय द्व र य ची क प्रत्य िेदन हनयम 25 के कम
में परीक्षण करते ि ये हनस्त ररत करने के आदेश देते ि ए
आदेश उल्िेख हकय गय िै हक य ची को िघु दण्ड
प्रद न हकय गय । य ची द्व र उक्त दण्ड देश के हिरूद्ध
अपीि प्रस्तुत निीं की गयी िै, जबहक जनपद िखीमपुर
खीरी द्व र उपिब्ध कर यी गयी दण्ड पत् ििी एिां
आख्य से स्पष्ट िै हक य ची को िघु दण्ड निीं िरन
दीघु दण्ड (सेि से पदच्युत) हकय गय िै तथ उक्त
दण्ड देश के हिरूद्ध य ची द्व र सक्षम अहधक ररयों के
समक्ष अपीि एिां ररिीजन प्रस्तुत हकय गय िै, हजसे
क िब हधत/ हनयमहिरूद्ध िोने के फिस्िरूप
अस्िीक र कर हनस्त ररत हकय गय िै। य ची श्री
हसर ज ि सैन, पदच्युत (हडसहमस) आरक्षी द्व र म ०
धय य िय के समक्ष गित तथ्यों को प्रस्तुत हकय गय
िै।"

14. We must say at once that even
if there was an error apparent in the orders
passed by this Court, it is both beyond ken
and jurisdiction of the Additional Chief
Secretary to say that this Court has
committed an error apparent. He also could
not have at all blamed learned Counsel for
the petitioner, saying that this Court had
been misguided into passing the order
dated 06.09.2018. There is absolutely no
power or jurisdiction with the Additional
Chief Secretary to comment on the record
or proceedings of this Court in the slightest
measure. The remarks in paragraph No.6 of
the
impugned
order
are
ex
facie
contumacious, of which we could have
taken cognizance. However, adopting a
magnanimous view in the matter, we rest
the matter here so far as the facet of
contents of the order impugned are
concerned. But, it does not mean that we
can allow these kind of remarks to be made
by the Additional Chief Secretary regarding
our record and proceedings. The proper
course for the Additional Chief Secretary
was to have understood the order in the
best way possible within the limits of his
jurisdiction and decide the matter without
commenting on the worth or validity of this
Court's order or saying if we were
misguided into passing it. He had no
1502 INDIAN LAW REPORTS ALLAHABAD SERIES
business to blame the learned Counsel, who
appeared in the matter earlier of misguiding
this Court. If for some reason, the
Additional Chief Secretary felt that he
could not decide the matter without writing
that our order in Writ Petition No. 25392
(S/S) of 2018 dated 06.09.2018 suffered
from some kind of an error apparent, the
only course of action open to him was to
stay proceedings before him and make an
application before the Hon'ble Judge, who
passed that order, seeking clarification of
the remarks about the 'minor penalty'
mentioned in the order. We think that it was
not at all necessary to seek any clarification
because whether the penalty was minor or
major, it had no bearing on the directions
issued by this Court that were harmlessly
limited to a command to the State
Government to decide the petitioner's
representation preferred under Rule 25 of
the Rules. The remarks about the order
incorrectly mentioning that the petitioner
had been punished with a censure instead
of dismissal and virtually castigating our
order for an error apparent, is to say the
least, the most undesirable transgression of
hierarchy in jurisdiction by the Additional
Chief Secretary.

15. So far as the second part of the
order impugned is concerned, by which the
Additional Chief Secretary has held the
representation under Rule 25 of the Rules
not maintainable, we find it to be utterly
flawed. Rule 25 of the Rules reads:

"25.
Power
of
Government.- Not withstanding
anything contained in these Rules
the Government may, on its own
motion or otherwise call for and
examine the records of any case
decided by an authority subordinate
to it in the exercise of any power
conferred on such authority by
these rules, and against which no
appeal has preferred under these
rules and-
(a)
confirm
modify
or
revise
order
passed
by
such
authority, or
(b) direct that a further
inquiry be held in the case, or
(c) reduce or enhance the
penalty imposed by the order, or
(d) make such other order
in the case as it may deem fit.
Provided that where it is
proposed to enhance the penalty
imposed by any such order the
police officer concerned shall be
given an opportunity of showing
cause
against
the
proposed
enhancement."

16. The Additional Chief Secretary
too has quoted the above rule in extenso.
The second part of his reasoning carried in
the impugned order dated 01.02.2022, we
find flawed for the reason that in the
Additional Chief Secretary's opinion, the
petitioner's remedy under Rule 25 of the
Rules was barred because he had appealed
the order of punishment, which excluded
the State Government's power under Rule
25 whereas in this case, there was really no
appeal ever carried by the petitioner. The
petitioner did attempt to lodge an appeal
with the Appellate Authority praying for
condonation of delay, which was twice
denied. The Appellate Authority having
denied the petitioner's condonation of delay
in the matter of his appeal, no competent
appeal on the petitioner's behalf ever came
into existence. All that was dealt with by
the Appellate Authority was a delay
condonation application, which he rejected,
in consequence whereof no appeal can be
said to have ever been instituted by the
7 All. Siraj Hussain Vs. State of U.P. & Anr.
1503
petitioner
against
the
Disciplinary
Authority's order under Rule 20 of the
Rules. If there was no appeal ever
competently instituted against the order of
the Authority of first instance, the clause in
Rule 25 excluding the State Government's
jurisdiction to exercise power under Rule
25 does not come into play at all. It is here
where the Additional Chief Secretary has
erred in saying the petitioner's statutory
representation under Rule 25 was not
maintainable. For the said reason, the order
of the Additional Chief Secretary on this
count is held bad and vitiated.

17. The last part of the order
impugned where the Additional Chief
Secretary has attempted to show that he has
considered the merits of the petitioner's
case as well, is besides the point. Once he
has held the proceedings to be incompetent
before him, his remarks on merits lose all
significance. Even if the remarks on merits
are to be taken as valid expression of an
opinion by the State Government under
Rule 25, we are not at all impressed by the
reasoning, in that that the conclusions are
laconic, cryptic and perfunctory. We must
say that the petitioner has been denied his
right of appeal and revision on the technical
ground of delay under Rules 20 and 23 of
the Rules. The remedy under Rule 25 is of
wide import casting a duty on the State
Government to see that no injustice is done.
In this case, virtually the State Government
while exercising powers under Rule 25
would be doing a review of the order of
punishment passed by the Disciplinary
Authority. It has, therefore, to consider
the matter almost as carefully as would
be expected of the Appellate Authority, if
not precisely by the same procedure. On
the basis of contentions raised, the
procedural
fairness,
the
evidence
appearing against the petitioner, the
tenability of his defence based on
documents that the petitioner has offered
to justify his absence, must all be
carefully scrutinized to affirm, modify or
pass any other order under Rule 25 of the
Rules. It cannot be done by the State
Government at least in this case by a
cryptic remarks that the petitioner has
shown nothing that may demonstrate his
innocence as to the charge. The State
Government must satisfy themselves if in
this
case
the
Establishment
have
discharged their burden of bringing home
the
charge
by
evidence,
both
documentary and oral, after fixing a date,
time and place for holding an inquiry.
These are the procedural aspects, which
must
be
gone
into
by
the
State
Government
while
deciding
the
petitioner's statutory representation under
Rule 25 of the Rules. The quantum of
punishment, and if it is disproportionate,
would always be open to the State
Government to consider while making
their orders afresh under Rule 25.

18. In the circumstances above
enumerated, this petition succeeds and is
allowed in part. The impugned order
dated 01.02.2022 passed by the State
Government is hereby quashed. The
petitioner's statutory representation under
Rule 25 of the Rules is restored to the
State Government's file to be decided
afresh within six weeks of receipt of a
copy of this order bearing in mind the
guidance in this judgment.

19. There shall be no orders as to
costs.

20. Let a copy of this order be
communicated to the Additional Chief
Secretary (Home), Government of U.P.,
Lucknow by the Senior Registrar.
1504 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2024) 7 ILRA 1504
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.07.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ-A No. 7795 of 2024

C/M Kunwar Rukum Singh Vaidik Inter
College & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Prabhakar Awasthi, Suresh Singh

Counsel for the Respondents:
C.S.C., Shivendra Bahadur Singh

A.
Service
Law
-
Seniority
-
U.P.
Intermediate
Education
Act,
1921
-
Regulation 3 of Chapter II - The District
Inspector of Schools has no authority
under provisions of the regulations framed
under the U.P. Intermediate Education Act
or under any other statutory provision to
interfere with the seniority list issued by
the committee of management of the
college or to issue a direction to the
committee of management to issue a fresh
seniority list and to appoint officiating
principal as per the modified seniority list
to be issued as per the directions of the
District Inspector of Schools. (Para 10)

Regulation 3 does not confer any power on
the District Inspector of Schools to interfere
with the seniority list published by the
Committee of Management of any institution.
Regulation 3(1)(f) provides that any person
aggrieved by fixation of his seniority, may file
an
appeal
before
the
Regional
Deputy
Director of Education and the appellate
authority can pass suitable orders in exercise
of his appellate jurisdiction. However, even
the Regional Deputy Director of Education has
not been granted any authority to suo motto
interfere with the seniority list issued by the
Committee
of
Management
under
the
provisions of Regulation 3(1) of Chapter II of
the regulations framed under the Act. (Para
9)

The impugned orders dated 27.03.2024 and
15.04.2024 are unsustainable in law. (Para 11)

Writ petition allowed. (E-4)

The present writ petition challenges the
validity of an orders dated 27.03.2024 and
15.04.2024,
passed
by
the
District
Inspector of Schools, Badaun, rejecting
the seniority list of Lecturers in the
petitioners' institution, prepared by the
petitioners and directing them to issue a
fresh seniority list as per the earlier
seniority list published by the petitioners
in the year 2020-21 and directing the
petitioners to hand over charge of the
post
of
Principal,
failing
which
the
proceedings
will
be
initiated
for
superseding the managing committee of
the college, respectively.

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Prabhakar Awasthi, the
learned counsel for the petitioners, Sri
Shailendra Singh, the learned Standing
Counsel representing the opposite parties
no. 1, 2 & 3 and Sri Manish Kumar holding
brief of Sri Shivendra Bahadur Singh, the
learned counsel for the opposite party no. 4.

2. By means of the instant writ
petition filed under Article 226 of the
Constitution of India, the petitionersCommittee
of
Management,
Kunwar
Rukum Singh Vaidik Inter College, Badaun
and its Manager have challenged validity of
an order dated 27.03.2024 passed by the
District Inspector of Schools, Badaun,
rejecting the seniority list of Lecturers in
the petitioners' institution, prepared by the
petitioners and directing them to issue a
fresh seniority list as per the earlier
seniority list published by the petitioners in