# Smt. Raj Bala Sharma v. State of U.P. and others

- **Citation:** (2009) 2 ILRA 617
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-07-23
- **Bench:** Rakesh Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-raj-bala-sharma-v-state-of-u-p-and-others-41665
- **Pages:** 7

## Headnote

U.P. Government Servant Conduct Rules
1956-Rule 29 (3) (1) and (2)-Dismissal
from Service-petitioner being widow
working as S.I. (M) on compassionate
ground-got married with one Mr. Ajeet
Singh (Constable)-marriage slenderized
before Court-during enquiry was found
that Ajeet Singh already married having
his first wife alive-never disclosed this
fact-no misconduct pointed out in any
manner-petitioner having one daughter
of marriageable age and burden to settle
two
sons-except
minor
no
major
punishment
could
be
inflictedperformance of petitioner found through
and expellant-punishment of dismissalheld-harsh-direction for reinstatement
with full salary issued.

Held: Para 19

This Court has also taken note of two
decisions of this Court in which similar
controversy has been set at rest. In 1997
All.L.J 1714 (Supra), this Court has held
that no major penalty could be awarded
to
a
government
servant
on
contravention of provisions contained in
rule 29 of the U.P. Govt. Servant Conduct
Rules, 1956. Only a minor penalty as
indicated in the rules could have been
imposed. The punishment of dismissal in
the present case is not proportionate to
the
charges
levelled
against
the
petitioner. The misconduct which has
been imputed to the petitioner is not in
any manner affecting the discharge of
her official duty. No such finding has
been
recorded
by
the
competent
authority in this regard. The punishment
of dismissal from service awarded to the
petitioner appears to be harsh and it
does not commensurate to the gravity of
charge
proved
against
her.
The
petitioner's case is squarely covered by
the above said decision of this Court as
well as in the light of the decision
rendered by Hon'ble Apex Court in the
case of Ranjit Thakur Vs. Union of India
(AIR 1987 SC 2386) and other cases
cited in the aforementioned judgment of
this Court.
Case law discussed:
1977 ALJ 1714, AIR 1987 SC 2386.

## Text

2 All] Smt. Raj Bala Sharma V. State of U.P. and others
617
Authority under the Ceiling Act could not
go against the said judgment, hence fresh
proceedings on the same point were not
maintainable.

Accordingly, writ petition is allowed.
Impugned orders are set aside.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.07.2009

BEFORE
THE HON'BLE RAKESH SHARMA, J.

Civil Misc. Writ Petition No. 27963 of
2007.

Smt. Raj Bala Sharma
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ram Shiromani Mishra

Counsel for the Respondents:
Sri V.K. Nagaich
S.C.

U.P. Government Servant Conduct Rules
1956-Rule 29 (3) (1) and (2)-Dismissal
from Service-petitioner being widow
working as S.I. (M) on compassionate
ground-got married with one Mr. Ajeet
Singh (Constable)-marriage slenderized
before Court-during enquiry was found
that Ajeet Singh already married having
his first wife alive-never disclosed this
fact-no misconduct pointed out in any
manner-petitioner having one daughter
of marriageable age and burden to settle
two
sons-except
minor
no
major
punishment
could
be
inflictedperformance of petitioner found through
and expellant-punishment of dismissalheld-harsh-direction for reinstatement
with full salary issued.

Held: Para 19

This Court has also taken note of two
decisions of this Court in which similar
controversy has been set at rest. In 1997
All.L.J 1714 (Supra), this Court has held
that no major penalty could be awarded
to
a
government
servant
on
contravention of provisions contained in
rule 29 of the U.P. Govt. Servant Conduct
Rules, 1956. Only a minor penalty as
indicated in the rules could have been
imposed. The punishment of dismissal in
the present case is not proportionate to
the
charges
levelled
against
the
petitioner. The misconduct which has
been imputed to the petitioner is not in
any manner affecting the discharge of
her official duty. No such finding has
been
recorded
by
the
competent
authority in this regard. The punishment
of dismissal from service awarded to the
petitioner appears to be harsh and it
does not commensurate to the gravity of
charge
proved
against
her.
The
petitioner's case is squarely covered by
the above said decision of this Court as
well as in the light of the decision
rendered by Hon'ble Apex Court in the
case of Ranjit Thakur Vs. Union of India
(AIR 1987 SC 2386) and other cases
cited in the aforementioned judgment of
this Court.
Case law discussed:
1977 ALJ 1714, AIR 1987 SC 2386.

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

1. Heard Sri Ram Siromani Misra,
learned counsel for the petitioner and
learned Standing Counsel representing the
State.

2. The petitioner, an erstwhile
Assistant Sub Inspector (Ministerial)
working
in
41st
battalion
P.A.C.,
Ghaziabad has assailed the order of
removal dated 13.1.2006 passed by the
D.I.G., P.A.C., Meerut Range, Meerut and
subsequent orders passed by the appellate
and revisional authorities. It was a case of
a lady police official who was a widow
618 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
unknowingly, remarried to her Junior
colleague one constable (M) Ajeet Singh
who was alleged to be already married to
someone. In place of awarding a minor
penalty as provided under rule 29 of the
U.P. Govt. Servant Conduct Rules, 1956,
the petitioner has been dismissed from
service. The punishment was too harsh
and it did not commensurate to the
charges levelled against her. Sub rule(3)
of rule 29 of the above said rule itself
provides for awarding a minor penalty of
withholding of an increment for three
years if the government servant violates
the provisions contained in sub rules (1)
and (2). The widow with two minor
children could not get herself resettled in
life , rather lost her job which was
provided to her on compassionate ground
after death of her first husband , a police
personnel.

3. It emerges from the record that
the petitioner's husband had died while in
government service and she was provided
with compassionate appointment in the
police department on a ministerial post.
She was appointed on the post of
constable (m) on 21.11.1992 as her
husband had died in harness on 10.2.92.
Considering her satisfactory services, she
was promoted to the post of Assistant Sub
Inspector
of
Police(m).
While
the
petitioner was posted as Asstt. Sub
Inspector of Police (M) in the office of
SSP, Bulandshahr in the year 2003, she
met Sri Ajeet Singh who was also posted
there as constable (m). The petitioner
being a widow was being provided
emotional and other kind of support by
Sri Ajeet Singh and intimate relationship
developed between the two. As per
learned counsel for the petitioner she did
not know about the fact that Sri Ajeet
Singh was already married or her wife
was a serious patient of Tuberculosis.
Both of the them agreed to go for a court
marriage and accordingly the said union
was registered by the Registrar (Hindu
Marriage) on 11.3.2003. No formal
marriage as per Hindu rites Satpadi etc.
was performed. The petitioner already had
two minor children, one daughter and a
son at the time of her marriage. In fact she
was in urgent need of emotional and other
support to run and manage her family and
the colleague Sri Ajeet Singh had always
extended cooperation to her in sustaining
herself in life and society. He was always
available to her with a helping hand.
Much emphasis has been laid by the
counsel for the petitioner that she did not
know that Sri Ajeet Singh was already
married and had a wife living in the
village. Both of them started living
together and she was transferred to 41st
Battalian, PAC, Ghaziabad in the year
2004.

4. On some complaints, the
Commandant,
P.A.C.
ordered
a
preliminary enquiry against the petitioner
for violating the provisions contained in
section 29 of the U.P. Govt. Servant
Conduct Rules, 1956. A preliminary
enquiry was conducted initially by one
Dharam Singh, Assistant Commandant
and subsequently Smt. Abha Singh,
Deputy
Commandant
started
a
departmental enquiry by issuing a charge
sheet
on
9.2.2005.
The
petitioner
submitted a detailed reply to the charge
sheet dated 9.2.2005 and pleaded herself
innocence of the charges. While the first
departmental enquiry was still pending, a
second preliminary enquiry was also
ordered against the petitioner to be
conducted by one Sri Santosh Kumar, an
Assistant Commandant in 41st Bn, P.A.C.
who submitted his report on 30.5.2005.
2 All] Smt. Raj Bala Sharma V. State of U.P. and others
619
This time Sri Ashok Kumar, Deputy
Commandant had issued another charge
memo on 6.8.05. Both the charges dated
9.2.2005 and 6.8.2005 contained the same
charges. The petitioner again submitted a
reply to this charge sheet on 17.8.2005
pleading innocence.

5. The Enquiry Officer completed
the enquiry and submitted the report on
15.9.05 holding the petitioner guilty of the
charges.
The
Enquiry
Officer
had
recommended dismissal of the petitioner
from the service. These findings were
approved and a show cause notice was
issued on 25.11.2005. The petitioner filed
a writ petition No.76193 of 2005 in this
Hon'ble Court seeking quashing of the
proceedings and show cause notice. This
Court had ordered for completing the
enquiry within a stipulated period. The
reply to the show cause notice was
submitted
on
22.12.2005.
Several
decisions of Hon'ble Apex Court and this
Court were cited before the concerned
officer. These cases supported the case of
the petitioner. Without considering the
reply submitted by the petitioner, D.I.G.
of Police, Meerut had passed the final
order of penalty on 13.1.2006 dismissing
the petitioner from service.

6. As per learned counsel for the
petitioner, the petitioner's case was not
covered by rule 29 of the U.P. Govt.
Servant Conduct Rules, 1956 as the
charge sheet did not indicate that the
petitioner did not obtain the permission of
the State Government before undergoing
remarriage. A widow could remarry under
law though offence of remarriage is
punishable under section 494 IPC. This is
not applicable in the petitioner's case as
she was a widow at the time of her
marriage. The petitioner had not violated
any of the provisions contained in the said
section. If Sri Ajeet Singh was already
married, the petitioner's marriage which
was registered in the office of Registrar of
Marriage on 11.3.2003 shall be treated to
be null and void. The court marriage
solemnised on 11.3.2003 by issuing
certificate by Registrar of Marriage has
become null and void if Sri Ajeet Singh
was treated to be already married. The
marriage being null and void , no action
should have been taken against the
petitioner under rule 29 of the U.P. Govt.
Servant Conduct Rules, 1956.

7. Sri Ram Shiromani Mishra has
laid much emphasis that Sri Ajeet Singh
had given in writing that he had not
informed the petitioner Raj Bala Sharma
regarding her earlier marriage. The
petitioner being a widow and that too with
two little children agreed to get married
with Ajit Ajeet Singh to resettle herself in
life. The petitioner's alleged marriage with
Sri Ajeet Singh did not in any manner
interfere or obstruct her with her official
duty which she had been performing with
sincerity and dedication. The punishment
awarded against the petitioner was quite
harsh and disproportionate to the charges
levelled
against
her.
Even
as
per
provisions contained in this rule, no major
penalty can be awarded against the
petitioner. Rule 29 is quoted below:

29(1): No Govt. Servant who has a
wife
living
shall
contract
another
marriage without fresh obtaining the
permission of the Govt. notwithstanding
that
such
subsequent
marriage
is
permissible under the personal law for the
time being applicable to him.
(2) No female Govt. Servant shall marry
any person who has a wife living without
first obtaining permission of the Govt.
620 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
(3) A minor punishment to be imposed
in contravention of Sub Rule(1) or Sub
Rule (2) shall be withholding of
increments for three years.

8. The petitioner has placed reliance
on a judgment rendered by this Court
reported in 1977 ALJ 1714- Paras Nath
Pandey Vs. Asstt. Director (Admn),
Directorate of Training and Employment,
U.P., Lucknow and others. In this case
this Court has clearly laid down that in
such case only minor penalty could be
awarded against a government servant in
violation of rule 29 of the U.P. Govt.
Servant Conduct Rules, 1956. Another
judgment rendered on 20.12.2004 in
W.P.No.19034 of 1997- Gaya Deen Vs.
Inspector General of Police(Railways),
Allahabad & others has also been
produced before the Court.

9. The petitioner's appeal and
revision were rejected without application
of mind. The petitioner has been thrown
out of employment which was provided to
her by the government on compassionate
ground after the death of her husband late
Sri Santosh, a police personnel on
21.11.1992. She would suffer irreparable
loss and injury. She has no other means of
livelihood and has to maintain her two
children and settle them in life.

10. Learned Standing Counsel has
opposed the writ petition and submitted
that
the
petitioner
knowingly
had
remarried Sri Ajeet Singh who had a wife
living at his native village. A statement
has
been
made
by
Sub
Registrar/Registration
Officer,
Hindu
Marriage, Ghaziabad that the marriage
was registered on 11.3.2003 under section
8 of the Hindu Marriage Act, 1955 and a
formal certificate under rule 7(2) of the
U.P. Hindu Marriage Niyamawali, 1973
was issued to the couple. Since the
marriage was solemnised and registered
on 11.3.2003, there was clear violation of
rule 29 of the U.P. Govt. Servant Conduct
Rules, 1956. Learned Standing Counsel
has also submitted that the petitioner has
stopped taking family pension after this
marriage and she has returned Rs.7,239/-
the amount of family pension to the Govt.
Treasury. Thus, the factum of marriage
was established. As far as the petitioner's
submission that she had no knowledge of
earlier marriage of Ajeet Singh, it cannot
be believed. She was senior to Sri Ajeet
Singh and she must have made an enquiry
before marrying Sri Ajeet Singh. As far as
the departmental enquiry is concerned, the
same was held in accordance with the
relevant service rules. A preliminary
enquiry was conducted and it was
followed by a formal regular enquiry. A
detailed charge sheet was issued against
the
petitioner.
After
obtaining
and
considering her reply a show cause notice
was issued against her. Considering the
gravity of the charges, the petitioner was
rightly dismissed from the service. There
was no illegality or infirmity in the
decision making process in holding
departmental
enquiry.
Adequate
punishment has been awarded against the
petitioner who had remarried constable
Ajeet Singh. The competent authority had
followed the provisions contained in rule
29 of U.P. Govt. Servant Conduct Rules,
1956.

11. I have heard learned counsel for
the parties at length and perused the
record.

12. Here is a case of a widow of a
police
personnel
who
was
given
compassionate appointment on the death
2 All] Smt. Raj Bala Sharma V. State of U.P. and others
621
of her husband in harness on 10.2.92. At
the time of the death of her husband, the
petitioner had two minor children to
maintain. She was given compassionate
appointment on 21.11.92 on the post of
constable (m). It is evident from record
that the petitioner was subsequently
promoted on the higher post of Assistant
Sub Inspector of Police (m). This shows
that her work, conduct and performance
in the services had remained satisfactory.
It was natural for a young widow like the
petitioner to get attracted to a colleague
working in the same department. Both
were in the ministerial establishment
working in the same office. The love is
blind. It also appears from the record that
Sri Ajeet Singh was supporting his senior
colleague Smt. Raj Bali Sharma and her
children in the time of need. It is borne
out from the record that Sri Ajeet Singh
was providing mental and other support to
the petitioner and her children to carry on
in life at a small city, i.e.,Bulandshahr. In
peculiar circumstance in which the
widowpolice personnel was living, it was
natural for her to be attracted to a
supportive man. Like in garden a creeper
(Lata, vallarre) needs a strong support to
climb up and sustain itself, a woman also
may need a support who could stand with
her facing the life garden in hard times.
Even a small stream needs support of its
banks, strong hills rocks to proceed
further in the process to transform itself
into a big mighty river.

13. As far as petitioner's statement is
concerned , she has demonstrated that she
had no knowledge about the first marriage
of Sri Ajeet Singh. As far as the offence
of remarriage (as per section 494 IPC) is
concerned, in the present case the
petitioner Smt. Raj Bala Sharma had
married after the death of her first
husband. Section 494 I.P.C. deals with a
person who had a husband or wife living.
This charge cannot be fastened on Smt.
Raj Bala Sharma, petitioner. There is
substance in the submission of the learned
counsel for the petitioner that according to
section 17 of Hindu Marriage Act, no
marriage between two Hindus could be
solemnised if one of them has a husband
or wife living. If such marriage is
solemnised after the commencement of
this Act it would be null and void. The
provisions of section 494 and 495 IPC
shall apply in such cases. Applying this
law, the marriage of the petitioner with
Sri Ajeet Singh was null and void under
law and no punishment could be awarded
against her under section 29 of the U.P.
Govt. Servant Conduct Rules, 1956. As
per section 11 read with section 5 of the
Hindu Marriage Act, 1955, the marriage
may be held as void. The petitioner's case
cannot be dealt with under under rule 29
of the U.P. Govt. Servant Conduct Rules,
1956. Sri Ajeet Singh had given in writing
to the Enquiry Officer that he had not
informed the petitioner regarding her
earlier marriage. The petitioner appears to
be innocent in the present case.

14. In Rule 29 of the U.P. Govt.
Servant Conduct Rules, 1956, the main
thrust has been given on the term "
without obtaining prior permission of the
government". In this case the petitioner
has not been charged for this misconduct.
She has been charged only for remarriage
and not for charge of not obtaining the
permission of the government. Neither
there was such accusation against the
petitioner nor it was found proved.

15. This Court has read the
provisions contained in rule 29 of the U.P.
Govt. Servant Conduct Rules, 1956. It has
622 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
been provided in these rules that whoever
contravenes the provisions contained in
rule 29(1)&(2) shall be awarded with a
minor penalty. In the present case, the
awarding of punishment of dismissal is
certainly against the letter and spirit of
rule 29 itself. The major penalty ought not
to have been awarded against the
petitioner applying the rule 29(1)(2)(3) of
the U.P. Govt. Servant Conduct Rules,
1956.

16. This Court has also taken note of
the fact that the work, conduct and
performance
of
the
petitioner
has
remained satisfactory. The petitioner's
alleged marriage with Sri Ajeet Singh did
not in any manner interfere with or
obstruct her official duties. She was
promoted from the post of constable to
S.I. (M) and was posted at Bulandshahar.
There is nothing on the record to show
that her work, conduct and performance
was not up to the mark. Even otherwise
her living with Sri Ajeet Singh or having
intimate relation could not be branded as
an offence committed by her as it has
come on record that she was not aware of
earlier marriage of Sri Ajeet Singh and
she being widow could have performed
remarriage with a colleague or a man of
her choice.

17. Learned counsel for the
petitioner has also submitted that the
petitioner as well as Sri Ajeet Singh both
have been dismissed from service and
none of them have any other means to
sustain their families . Both of them are
immensely suffering due to issuance of
dismissal order. The education and
upbringing of the children is also
suffering.

18. This Court has also noted that as
a result of dismissal from service, the
petitioner, a widow has immensely
suffered, as submitted by the learned
counsel for the petitioner. It may be hard
for her to sustain herself and her two
children in life. Her daughter is of
marriageable age and both the children
have to be settled in life. Considering the
subject matter of accusation, misconduct
committed by the widow, it was not
appropriate
to
throw
her
out
of
employment, dismiss her from services
rendering
her
unfit
for
future
employment.

19. This Court has also taken note of
two decisions of this Court in which
similar controversy has been set at rest. In
1997 All.L.J 1714 (Supra), this Court has
held that no major penalty could be
awarded to a government servant on
contravention of provisions contained in
rule 29 of the U.P. Govt. Servant Conduct
Rules, 1956. Only a minor penalty as
indicated in the rules could have been
imposed. The punishment of dismissal in
the present case is not proportionate to the
charges levelled against the petitioner.
The misconduct which has been imputed
to the petitioner is not in any manner
affecting the discharge of her official
duty. No such finding has been recorded
by the competent authority in this regard.
The punishment of dismissal from service
awarded to the petitioner appears to be
harsh and it does not commensurate to the
gravity of charge proved against her. The
petitioner's case is squarely covered by
the above said decision of this Court as
well as in the light of the decision
rendered by Hon'ble Apex Court in the
case of Ranjit Thakur Vs. Union of India
(AIR 1987 SC 2386) and other cases
2 All] Dinesh Kumar Singh and others V. State of U.P. and others
623
cited in the aforementioned judgment of
this Court.

20. In view of the above discussion,
the petition succeeds and is allowed. The
order of impugned dismissal of the
petitioner dated 13.1.2006 and the orders
passed in the appeal and revision dated
19.3.2006 and 12.4.2007 respectively are
quashed. Since the order of dismissal has
been quashed by this Court, the petitioner
is
entitled
for
reinstatement.
The
respondents are directed to reinstate the
petitioner in service within one month
from the date of filing of a copy of this
order by the petitioner before the
authority concerned. It is further observed
that it shall be open to the appropriate
authority to award only other minor
penalty against the petitioner as provided
in sub rule (3) of rule 29 of the U.P. Govt.
Servant Conduct Rules, 1956 if the
charges are proved. All the consequences
shall follow. The petitioner shall be
treated to have remained in service with
all the consequential benefits of such
service.

No order as to cost.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.07.2009

BEFORE
THE HON'BLE D.P. SINGH, J.

Civil Misc. Writ Petition No. 33148 of 2009
Connected with
Civil Misc. Writ Petition No. 33389 of 2009
And
Civil Misc. Writ Petition No. 33431 of 2009
And
Civil Misc. Writ Petition No. 33494 of 2009
And
Civil Misc. Writ Petition No. 33614 of 2009
And
Civil Misc. Writ Petition No. 34075 of 2009
And
Civil Misc. Writ Petition No. 34170 of 2009
And
Civil Misc. Writ Petition No. 34177 of 2009
And
Civil Misc. Writ Petition No. 34328 of 2009
And
Civil Misc. Writ Petition No. 29283 of 2009
And
Civil Misc. Writ Petition No. 35766 of 2009
And
Civil Misc. Writ Petition No. 34897 of 2009
And
Civil Misc. Writ Petition No. 34483 of 2009

Dinesh Kumar Singh & others ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Bhupendra Kumar Tripathi

Counsel for the Respondents:
S.C.

U.P. Pharmasists Service Rules, 1980
Rule 15 (2)-Selection of Pharmasistspreperation
of
merit
list-instead
of
yearwise or batchwise inter se-senioritycombined merit list prepared-out of 900
only 300 candidate questioned the action
of authorities-appellate court-confining
the
relief
only
within
those
300
candidates-directed for preparation of
their
merit
list-following
inter
se
seniority
with
batch/yearwise-now
petitioners
being
encouraged
with
Division
Bench
division-after
considerable
time
seeking
same
treatment-held-No relief can be granted.

Held: Para 15,16 & 17

Apart from the aforesaid, as already
observed above, any tinkering with the
order
would
amount
to
either
modification or as sitting in appeal over