# Sri Sayad Gulam Zilani v. V.C. Aligarh Muslim University and others

- **Citation:** (2011) 2 ILRA 609
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-05-03
- **Case number:** Civil Misc. Writ Petition No. 29618 of 1990
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-sayad-gulam-zilani-v-v-c-aligarh-muslim-university-and-others-41938
- **Pages:** 4

## Headnote

Constitution
of
India,
Article
226,311(2)-Alternative
remedydismissal
order-passed
without
considering the explanation given to
second show cause notice-nor any
reason recorded for non satisfaction
with the reply-order impugned heldbad
in
law-quashed
objection
regarding
alternative
remedy-not
sustainable-as since 1990 petition is
pending-can not be thrown out on
ground of alternative remedy.
610 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

Held: Para 9

From a simple reading of the order
passed by the Vice Chancellor, this
Court finds that except for recording
that after receipt of the enquiry report
a second notice was issued to the
petitioner and further that petitioner
has submitted his explanation thereto,
absolutely
no
reasons
have
been
recorded
for
disagreeing
with
the
explanation furnished by the petitioner
or for coming to a conclusion that the
charge stood proved, and for the order
of dismissal from service being passed.
Case law discussed:
(2003) 11 SCC 519; 2008(4) ALJ page 226;
AIR 1970 SC 1302; AIR 1990 SC 1984

## Text

2 All] Sri Sayad Gulam Zilani V. V.C. Aligarh Muslim University and others
609
of assessment was vitiated. This contention
is in the realm of mere suspicion having no
factual basis. It has to be kept in view that
there is not even a whisper in the petition
about any personal bias of the Members of
the Interview Committee against the
petitioners. The have also not alleged any
mala fides on the part of the Interview
Committee
in
this
connection.
Consequently, the attack on assessment of
the merits of the petitioners cannot be
countenanced. It remains in the exclusive
domain of the expert committee to decide
whether more marks should be assigned to
the petitioners or to the respondents
concerned. It cannot be the subject-matter
of an attack before us as we are not sitting
as a court of appeal over the assessment
made by the committee so far as the
candidates
interviewed
by
them
are
concerned."

9. Last contention on behalf of the
petitioner is that prescribing separate
qualifying marks for written test and
interview is arbitrary and illegal.

10. Petitioner after having taken a
chance of appearing in the selection
proceedings, it is not open to him to
challenge the selection proceedings or to
challenge the rule or advertisement under
which he has appeared. It is well settled that
once a candidate has taken a chance of
appearing in the proceedings for selection
then it is not open for him to challenge the
same
or
to
challenge
the
rule
or
advertisement under which he appeared, as
such, candidate has no locus standi.

11. Reference may be made to the
judgment of Hon'ble Apex Court in the case
of Union of India & Anr. Vs. N.
Chandrasekharan & Ors., (1998) 3 SCC
694, wherein it has been held that after
having appeared in the written test and
interview, an unsuccessful candidate cannot
be permitted to turn around and challenge
the procedure contending that marks
prescribed for interview in confidential
report are disproportionately high and the
authorities shall not fix a minimum to be
secured either in interview or in the
assessment of confidential report.

12. In view of the above facts and
discussions, the writ petition must fail and,
accordingly, stands dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.05.2011

BEFORE
THE HON'BLE ARUN TANDON,J.

Civil Misc. Writ Petition No. 29618 of 1990

Sri Sayad Gulam Zilani
 ...Petitioner
Versus
V.C.
Aligarh
Muslim
University
and
others

 ...Respondent

Counsel for the Petitioner:
Sri M.A. Qadeer
Sri Shamim Ahmed

Counsel for the Respondent:
S.C.
Sri D. Gupta
Smt. Suneeta Agarwal

Constitution
of
India,
Article
226,311(2)-Alternative
remedydismissal
order-passed
without
considering the explanation given to
second show cause notice-nor any
reason recorded for non satisfaction
with the reply-order impugned heldbad
in
law-quashed
objection
regarding
alternative
remedy-not
sustainable-as since 1990 petition is
pending-can not be thrown out on
ground of alternative remedy.
610 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

Held: Para 9

From a simple reading of the order
passed by the Vice Chancellor, this
Court finds that except for recording
that after receipt of the enquiry report
a second notice was issued to the
petitioner and further that petitioner
has submitted his explanation thereto,
absolutely
no
reasons
have
been
recorded
for
disagreeing
with
the
explanation furnished by the petitioner
or for coming to a conclusion that the
charge stood proved, and for the order
of dismissal from service being passed.
Case law discussed:
(2003) 11 SCC 519; 2008(4) ALJ page 226;
AIR 1970 SC 1302; AIR 1990 SC 1984

(Delivered by Hon'ble Arun Tandon,J. )

1. Petitioner before this Court was
employed as Section Officer in Aligarh
Muslim University. Under a letter issued by
the Head of Department dated 31.03.1982,
the petitioner was informed that he has been
dismissed from service. Not being satisfied
with the order so passed, the petitioner filed
an appeal, which was also dismissed on
13.07.1992. This culminated in original suit
being filed by the petitioner, being Original
Suit No. 348 of 1982. In the original suit a
written statement was filed by the Aligarh
Muslim University and it was stated that the
petitioner has only been placed under
suspension and he is being proceeded
departmentally.

2. Departmental proceedings were
held. The enquiry officer found petitioner
guilty of one charge, namely Charge No. 6
and submitted its report to the Vice
Chancellor. The Vice Chancellor issued
second show cause notice to the petitioner
calling upon him to explain as to why
punishment, as proposed, be not inflicted.

3. At this stage of the proceedings, the
petitioner approached this Court by means
of the present writ petition.

According
to
the
petitioner
the
departmental proceedings itself were bad
and consequently the second show cause
notice was liable to be quashed. No interim
order was granted, therefore the Vice
Chancellor proceeded in the matter and by
means of the order dated 22.10.1990 held
that the charge no. 6 against the petitioner
was established from the enquiry report.
Explanation submitted by the petitioner was
not
satisfactory
and
accordingly
the
punishment of dismissal from service was
inflicted. This order has been challenged by
means of the amendment application, which
has been allowed.

In order to keep the record straight, it
may be recorded that in between petitioner
had retired from service and under orders of
the Division Bench of this Court in Special
Appeal No. 948 of 2004 he has also handed
over possession of the official quarter,
which was allotted to him while he was in
service of the University.

4. Challenging the order of the Vice
Chancellor, counsel for the petitioner Sri
M.A. Qadeer raised a short ground, namely
that the order of the Vice Chancellor
contains absolutely no reasons for the
conclusion arrived at, namely that the
petitioner's reply was not satisfactory and
the charge against him stood proved.
Counsel for the petitioner submits that the
reasons
are
the
heartbeat
of
every
conclusion and without the same, it
becomes lifeless. Reference- Raj Kishore
Jha vs. State of Bihar & Ors.; (2003) 11
SCC 519 , which has since been followed in
by the Apex Court in the case of State of
Uttaranchal vs. Sunil Kumar Negi; 2008(4)
2 All] Sri Sayad Gulam Zilani V. V.C. Aligarh Muslim University and others
611
ALJ page 226. It is, therefore, contended
that the impugned order cannot be legally
sustained.

Counsel for the University Mrs. Sunita
Agrawal submits that the Vice Chancellor
has agreed with the findings recorded by the
enquiry officer and since explanation of the
petitioner to the second show cause notice
was not satisfactory, he has proceeded to
inflict the punishment after holding the
petitioner guilty of the charge. It is further
submitted that against the order impugned
the petitioner has remedy of approaching
the Executive Council. Lastly it is submitted
that the petitioner has been working as an
Advocate even prior to 1990. Even if the
order of the Vice Chancellor is set aside for
sufficient reasons being not recorded, there
cannot be a direction for reinstatement of
the petitioner or for payment of back wages
in the facts of the case.

5. I have heard learned counsel for the
parties and have gone through the records of
the writ petition.

This Court may first examine the plea
of
exhaustion
of
alternative
remedy
available to the petitioner. It is apparent that
the present writ petition is pending before
this Court since 1990 and the order passed
by the Vice Chancellor was subjected to
challenge by means of the amendment
application, which was granted in the year
1990 itself. Even otherwise the Hon'ble
Supreme Court of India in the judgment
reported in AIR 1970 SC 1302; Mahavir
Prasad Santosh Kumar vs. State of U.P.
and others has specifically held that in
absence of reasons having been recorded in
the order impugned, filing of an appeal
would be an empty formality.

6. In view of the aforesaid this Court
has no hesitation to record that asking the
petitioner to seek alternative remedy at such
a belated stage would not be fair and just.

7. Now on merits petitioner appears to
be justified in contending that the Vice
Chancellor should have considered the
explanation furnished by the petitioner to
the second show cause notice and should
have recorded independent reasons for
coming to a conclusion as to whether the
charge stood proved or not. Even otherwise
he shall have examined as to whether in the
facts of the case the punishment of
dismissal from service was commensurate
to the charge found proved.

8. The Hon'ble Supreme Court of
India in the case of S.N. Mukherjee Vs.
Union of India; AIR 1990 SC 1984 has
held that reasons are necessary links
between the facts and the findings recorded
in the administrative orders, which visit a
party with evil civil consequences. In
absence of reasons such an order cannot be
permitted to stand.

9. From a simple reading of the order
passed by the Vice Chancellor, this Court
finds that except for recording that after
receipt of the enquiry report a second notice
was issued to the petitioner and further that
petitioner has submitted his explanation
thereto, absolutely no reasons have been
recorded
for
disagreeing
with
the
explanation furnished by the petitioner or
for coming to a conclusion that the charge
stood proved, and for the order of dismissal
from service being passed.

10. In the totality of the circumstances
on record, the order impugned passed by the
Vice Chancellor cannot be legally sustained
and is hereby quashed.
612 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

The issue does arise as to what relief in
the facts of the case the petitioner be
granted after setting aside the order of the
Vice Chancellor. It is admitted position that
the petitioner is practicing as an Advocate
even since prior to 1990. It is not the case of
the petitioner that at any point of time he
had surrendered his licence to practice as an
Advocate. Further the petitioner has already
attained the age of superannuation. This
Court records that there cannot be an order
of reinstatement or for payment of back
wages to the petitioner on the principle of
'No Work No Pay' in the said factual
background. However, the issue as to
whether the petitioner would be entitled to
any relief for the period of suspension or till
passing of the order of termination as
impugned in the present writ petition, can
be examined by the Vice Chancellor
himself only after he adjudicate upon the
explanation furnished by the petitioner
afresh and take a decision supported by
reasons in the matter of disciplinary
proceedings taken against the petitioner. All
issues in that regard are left open.

11. Accordingly, the writ petition is
allowed. The order of the Vice Chancellor
is hereby quashed. Let the Vice Chancellor
take a fresh decision in the matter on the
basis of the records available, supported by
cogent reasons, preferably within three
months from the date a certified copy of this
order is filed before him.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.04.2011

BEFORE
THE HON'BLE ARUN TANDON,J.

Civil Misc. Writ Petition No. 30654 of 2008

Smt. Sudha Jain

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

Counsel for the Petitioner :
Sri H.N. Pandey

Counsel for the Respondent:
C.S.C.
Sri Ajay Kumar Sharma

Constitution
of
India-Article
226compassionate
appointment-widowed
daughter-in-law-not
within
the
definition of family-can not be appointed
on compassionate grounds.

Held: Para 14

So far as the divorced daughter-in-law is
concerned, the issue stands decided
under the judgement of this Court in the
case of Akhilesh Tiwari vs. State of U.P.
and others reported in 2006 (3) ESC
1865 (All).
Case law discussed:
[2009 (27) LCD 995]; 2003(40 AWC 3205;
2006(5) ADJ 501; [2011 (3) ADJ 432 (FB)];
2006 (3) ESC 1865 (All)

(Delivered by Hon'ble Arun Tandon,J.)

1. Petitioner before this Court made
an
application
for
compassionate
appointment on the allegation that her
mother-in-law expired during harness
and that her husband had pre-deceased
the mother-in-law meaning thereby that
the petitioner was widowed doughtier-inlaw of the deceased employee. This