# State of U.P. & Ors v. Om Prakash Soni 9 All State of U.P. & Ors. Vs. Om Prakash Soni

- **Citation:** (2021) 9 ILRA 506
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-27
- **Case number:** Special Appeal No. 200 of 2020
- **Bench:** Munishwar Nath Bhandari, A.C.J. Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-om-prakash-soni-9-all-state-of-u-p-ors-vs-om-prakash-soni-47439
- **Pages:** 7

## Headnote

A. Service Law - Constitution of India -
Article 311(2), Proviso - UP Government
Servant (Discipline and Appeal) Rules,
1999 - Dismissal - Conviction u/s 376,
511 IPC for the offence of attempt to rape
and
sentenced
to
seven
years
imprisonment with fine - Its effect -
Conduct of the petitioner was the basis for
the order of dismissal from service -
Disciplinary proceeding - Requirement -
Rules makes an exception of disciplinary
inquiry. An order of punishment can be
passed based on the conduct led to
conviction - Held, Disciplinary inquiry is
not required in such cases in view of the
provisions of the Constitution of India so
as the Uttar Pradesh Government Servant
(Discipline and Appeal) Rules, 1999 -
Learned Single Judge ignored the ratio
propounded by the Apex court in Tulsi
Ram Patel's case. (Para 9, 10, 11 and 15)
Appeal allowed. (E-1)
Cases relied on :-

## Text

506 INDIAN LAW REPORTS ALLAHABAD SERIES
having a period of limitation for correction
of the certificates.

160.
If
the
limitation
of
applicability of Byelaws was to be
reckoned from the date of application for
correction/change and not the date of result
of the examination conducted by CBSE, we
would be leaving things to a state of
uncertainty. For, a student who could
possibly have surpassed the limitation
period under unamended Byelaws would
regain the right to change the certificates if
the Byelaws existing on the date of
application permit so and provide for a
longer period. Similarly, a student who had
ten years for carrying out changes under the
unamended Byelaws would lose her right if
Byelaws are amended within the ten-year
period so as to provide for a much shorter,
say two years, limitation period. Certainty,
consistency and predictability are the
hallmarks of any legal relationship and it is
in the interest of public policy that legal
interpretation preserves and protects these
hallmarks. This determination, however, is
only to state the legal position and may not
have any immediate bearing on the cases
before us."

26. In the light of the finding recorded
by the Apex Court in the paras quoted
above, it is a case where the application for
change of name was given within the time
frame provided under the Bye-laws.

27. In view of the above, we are
unable to accept the argument of learned
counsel for the appellant that application
for change of name was submitted after the
period of limitation.

28. At this stage, we may also clarify
that the Bye-laws existing in the year 2013
was permitting an application for change of
name within 10 years of declaration of
result,
thus,
the
argument
that
an
application
for
change
of
name
or
correction of the certificate could have
been given only by the candidate while
pursuing the C.B.S.E. studies is not
acceptable. When Bye-laws permits, an
application for change of name within 10
years from the date of declaration of result
then it would be applicable even for a
candidate
passed
out
the
C.B.S.E.
Examination. If there exists contradiction
in the Bye-laws, beneficial provision is to
be applied for the student.

29. In totality, we do not find any
reason
to
cause
interference
in
the
judgment of learned Single Judge. The
issue has now been decided by the Apex
Court in the case of Jigya Yadav (supra)
and we have recorded finding not only in
reference to the Bye-laws but judgment of
the Apex Court in the case of Jigya Yadav
(supra), thus find no reason to cause
interference to the directions given by the
learned Single Judge. The writ petition
would now be governed by this judgment.

30. With the aforesaid finding, the
appeal is disposed of.
----------

(2021)09ILR A506
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.08.2021

BEFORE

THE HON'BLE MUNISHWAR NATH
BHANDARI, A.C.J.
THE HON'BLE SURESH KUMAR GUPTA, J.

Special Appeal No. 200 of 2020

State of U.P. & Ors. ...Appellants
Versus
Om Prakash Soni ...Respondent
9 All State of U.P. & Ors. Vs. Om Prakash Soni
507
Counsel for the Appellants:
C.S.C.

Counsel for the Respondent:
Mohd. Ali

A. Service Law - Constitution of India -
Article 311(2), Proviso - UP Government
Servant (Discipline and Appeal) Rules,
1999 - Dismissal - Conviction u/s 376,
511 IPC for the offence of attempt to rape
and
sentenced
to
seven
years
imprisonment with fine - Its effect -
Conduct of the petitioner was the basis for
the order of dismissal from service -
Disciplinary proceeding - Requirement -
Rules makes an exception of disciplinary
inquiry. An order of punishment can be
passed based on the conduct led to
conviction - Held, Disciplinary inquiry is
not required in such cases in view of the
provisions of the Constitution of India so
as the Uttar Pradesh Government Servant
(Discipline and Appeal) Rules, 1999 -
Learned Single Judge ignored the ratio
propounded by the Apex court in Tulsi
Ram Patel's case. (Para 9, 10, 11 and 15)
Appeal allowed. (E-1)
Cases relied on :-
1. K. Venkateshwarlu Vs St. of A.P., (2012) 8
SCC 73
2. R.P. Kapur Vs U.O.I. & anr., AIR 1964 SC 787
3. Sada Nand Mishra Vs St. of U.P. & anr., 2000
(18) LCD 88
4. U.O.I. Vs Tulsi Ram Patel, (1985) 3 SCC 398

(Delivered by Hon'ble Munishwar Nath
Bhandari, A.C.J.
&
Hon'ble Suresh Kumar Gupta, J.)

1. By this appeal, a challenge is made
to the judgment dated 27.09.2019 whereby
writ
petition
preferred
by
nonappellant/petitioner was allowed. The writ
petition was filed to challenge the order of
punishment of dismissal from service.

2. The brief facts of the case show
that while the non-appellant/petitioner was
working on the post of Collection Amin in
Tehsil Nawabganj, Gonda, was sentenced
to seven years imprisonment for the
offence under Sections 376, 511 Indian
Penal Code. The order of dismissal from
service was passed considering the conduct
of the petitioner led to his conviction. It
was by invoking Rule 7 of the Uttar
Pradesh Government Servant (Discipline
and
Appeal)
Rules,
1999
and
the
Government Order dated 06.09.2000.

3. The order of dismissal from service
was
challenged
by
the
nonappellant/petitioner by maintaining a writ
petition. The order of dismissal from
service has been set aside by learned Single
Judge
finding
that
no
disciplinary
proceeding was taken before passing the
order of punishment. It was by relying the
judgment of the Apex Court in the case of
K. Venkateshwarlu vs. State of Andhra
Pradesh, (2012) 8 SCC 73.

4. Learned counsel for the appellants
submits that impugned judgment has been
passed in ignorance of Article 311 of the
Constitution of India so as the Uttar
Pradesh Government Servant (Discipline
and Appeal) Rules, 1999. In case of
conviction of an employee, disciplinary
proceedings
are
not
required
rather
considering the conduct of the employee
led
to
conviction,
the
appropriate
punishment can be imposed. In the instant
case, the employee was convicted for the
offence under Sections 376, 511, 506
Indian Penal Code and sentenced to seven
years imprisonment with fine. The conduct
of the petitioner led to conviction was the
508 INDIAN LAW REPORTS ALLAHABAD SERIES
basis of the punishment of dismissal from
service. He was convicted for attempt to
rape and looking to the aforesaid conduct,
the order was passed dismissing him from
service.

5. Article 311 of the Constitution of
India and even Uttar Pradesh Government
Servant (Discipline and Appeal) Rules,
1999. Article 311(2) of the Constitution of
India exempts disciplinary proceedings in
case of conduct of an employee led to
conviction. Learned Single Judge has not
referred to the provisions of Constitution of
India so as Uttar Pradesh Government
Servant (Discipline and Appeal) Rules,
1999 rather erroneously relied on the
judgment in the case of K. Venkateshwarlu
(supra). The aforesaid judgment does not
propound a ratio on the issue rather it was a
judgment on a criminal appeal against the
order of conviction and not to challenge the
order of punishment.

6. It is also stated that even the
judgment in the case of R.P. Kapur vs.
Union of India and another, AIR 1964 SC
787 is not an authority on the issue. There
also, the order of punishment was not
challenged rather it was an order of
suspension. Learned Single Judge casually
relied the judgment supra to quash the
order of dismissal, thus prayer is to set
aside the judgment of learned Single Judge.

7. Learned counsel for the nonappellant has vehemently contested the
appeal and submits that the judgment
under challenge is covered by the
judgments of the Supreme Court in the
cases of R.P. Kapur (supra) and K.
Venkateshwarlu (supra). It is a case of
conviction, the authority needs to initiate
the disciplinary proceeding, as envisaged
under Uttar Pradesh Government Servant
(Discipline and Appeal) Rules, 1999.
Learned counsel for the appellants has
even made a reference of judgment of this
Court in the case of Sada Nand Mishra
vs. State of U.P. and another, 2000 (18)
LCD 88. Therein relying on the judgment
of Union of India vs. Tulsi Ram Patel,
(1985) 3 SCC 398, the order of
punishment was interfered. The prayer is
accordingly to maintain the judgment of
learned Single Judge.

8. We have considered the rival
submissions of learned counsel for the
parties and perused the record.

9. It is not in dispute that the nonappellant was convicted for the offence
under Sections 376, 511 Indian Penal
Code and sentenced to seven years
imprisonment with fine of Rs. 2000/-.
The conduct led to conviction was the
basis for dismissal from service. The
question for our consideration is as to
whether the disciplinary proceeding was
required before passing the order of
dismissal from service. We would first
refer to Article 311 of the Constitution of
India and for ready reference, it is quoted
hereunder:-

"311. Dismissal, removal or
reduction in rank of persons employed in
civil capacities under the Union or a
State.- (1) No person who is a member of a
civil service of the Union or an all-India
service or a civil service of a State or holds
a civil post under the Union or a State shall
be dismissed or removed by an authority
subordinate to that by which he was
appointed.

(2) No such person as aforesaid
shall be dismissed or removed or reduced
in rank except after an inquiry in which he
has been informed of the charges against
9 All State of U.P. & Ors. Vs. Om Prakash Soni
509
him and given a reasonable opportunity of
being heard in respect of those charges :

Provided
that
where
it
is
proposed after such inquiry, to impose
upon him any such penalty, such penalty
may be imposed on the basis of the
evidence adduced during such inquiry and
it shall not be necessary to give such
person
any
opportunity
of
making
representation on the penalty proposed:

Provided further that this clause
shall not apply-

(a) where a person is dismissed
or removed or reduced in rank on the
ground of conduct which has led to his
conviction on a criminal charge; or

(b)
where
the
authority
empowered to dismiss or remove a person
or to reduce him in rank is satisfied that for
some reason, to be recorded by that
authority in writing, it is not reasonably
practicable to hold such inquiry; or

(c) where the President or the
Governor, as the case may be, is satisfied
that in the interest of the security of the
State it is not expedient to hold such
inquiry.

(3) If, in respect of any such
person as aforesaid, a question arises
whether it is reasonably practicable to hold
such inquiry as is referred to in clause (2),
the decision thereon of the authority
empowered to dismiss or remove such
person or to reduce him in rank shall be
final."

10. Second proviso to Article 311(2)
of the Constitution of India provides
exception to the main provision. Article
311(2) mandates an inquiry if a person is
dismissed or removed or reduced in rank.
The second proviso carves out an exception
to the main provision where an employee
can be dismissed or removed or reduced in
rank on the ground of conduct led to
conviction on a criminal charge. The order
of dismissal from service in this case was
considering the conduct of the petitioner
led to his conviction. Learned Single Judge
has not referred to the constitutional
provision while setting aside the order of
dismissal. It is also without referring to the
relevant service rules which again carved
out an exception to the disciplinary inquiry
before the order of punishment. The
relevant Rule is also quoted hereunder for
ready reference :-

"7. Procedure for imposing
major penalties. - Before imposing any
major penalty on a Government servant, an
inquiry shall be held in the following
manner :

(i) The disciplinary authority may
himself inquire into the charges or appoint
an authority subordinate to him as Inquiry
Officer to inquire into the charges.

(ii) The facts constituting the
misconduct on which it is proposed to take
action shall be reduced in the form of
definite charge or charges to be called
charge-sheet. The charge-sheet shall be
approved by the disciplinary authority :

Provided
that
where
the
appointing authority is Governor, the
charge-sheet may be approved by the
Principal Secretary or the Secretary; as the
case may be, of the concerned department.

(iii) The charges framed shall be
so precise and clear as to give sufficient
indication to the charged Government
servant of the facts and circumstances
against him. The proposed documentary
evidence and the name of the witnesses
proposed to prove the same alongwith oral
evidence, if any, shall be mentioned in the
charge-sheet.

(iv) The charged Government
servant shall be required to put in a written
statement of his defence in person on a
510 INDIAN LAW REPORTS ALLAHABAD SERIES
specified date which shall not be less than
15 days from the date of issue of chargesheet and to state whether he desires to
cross-examine any witness mentioned in the
charge-sheet and whether desires to give or
produce evidence in his defence. He shall
also be informed that in case he does not
appear or file the written statement on the
specified date, it will be presumed that he
has none to furnish and Inquiry Officer
shall proceed to complete the inquiry ex
parte.

(v) The charge-sheet, alongwith
the copy of the documentary evidences
mentioned therein and list of witnesses and
their statements, if any shall be served on
the
charged
Government
servant
personally or by registered post at the
address mentioned in the official records.
In case the charge-sheet could not be
served in aforesaid manner, the chargesheet shall be served by publication in a
daily newspaper having wide circulation :

Provided
that
where
the
documentary
evidence
is
voluminous,
instead of furnishing its copy with chargesheet, the charged Government servant
shall be permitted to inspect the same
before the Inquiry Officer.

(vi)
Where
the
charged
Government servant appears and admits
the charges, the Inquiry Officer shall
submit his report to the disciplinary
authority on the basis of such admission.

(vii)
Where
the
charged
Government servant denies the charges, the
Inquiry Officer shall proceed to call the
witnesses proposed in the charge-sheet and
record their oral evidence in presence of
the charged Government servant who shall
be given opportunity to cross-examine such
witnesses. After recording the aforesaid
evidence, the Inquiry Officer shall call and
record the oral evidence which the charged
Government servant desired in his written
statement to be produced in his defence :

Provided that the Inquiry Officer
may for reasons to be recorded in writing
refuse to call a witness.

(viii) The Inquiry Officer may
summon any witness to give evidence or
require any person to produce documents
before him in accordance with the
provisions
of
the
Uttar
Pradesh
Departmental Inquiries (Enforcement of
Attendance of Witnesses and Production of
Documents) Act, 1976.

(ix) The Inquiry Officer may ask
any question he pleases, at any time of any
witness or from person charged with a view
to discover the truth or to obtain proper
proof of facts relevant to charges.

(x)
Where
the
charged
Government servant does not appear on the
date fixed in the inquiry or at any stage of
the proceeding inspite of the service of the
notice on him or having knowledge of the
date, the Inquiry Officer shall proceed with
the inquiry ex parte. In such a case the
Inquiry Officer shall record the statement
of witnesses mentioned in the charge-sheet
in absence of the charged Government
servant.

(xi) The disciplinary authority, if
it considers it necessary to do so, may, by
an order appoint a Government servant or
a legal practitioner, to be known as
"Presenting Officer" to present on its
behalf the case in support of the charge.

(xii) The Government servant may
take the assistance of any other Government
servant to present the case on his behalf but
not engage a legal practitioner for the
purpose unless the Presenting Officer
appointed by the disciplinary authority is a
legal practitioner of the disciplinary authority
having regard to the circumstances of the
case so permits :
9 All State of U.P. & Ors. Vs. Om Prakash Soni
511

Provided that this rule shall not
apply in following cases :

(i) Where any major penalty is
imposed on a person on the ground of
conduct which has led to his conviction on a
criminal charge; or

(ii)
Where
the
disciplinary
authority is satisfied that for reason to be
recorded by it in writing, that it is not
reasonably practicable to hold an inquiry in
the manner provided in these rules; or

(iii)
Where
the
Governor
is
satisfied that, in the interest of the security of
the State, it is not expedient to hold an
inquiry in the manner provided in these
rules."

11. The Rule quoted above also makes
an exception of disciplinary inquiry. An order
of punishment can be passed based on the
conduct led to conviction. In the instant case,
petitioner was convicted for the offence of
attempt to rape and sentenced to seven years
imprisonment with fine. The conduct of the
petitioner was the basis for the order of
dismissal from service. The disciplinary
inquiry is not required in such cases in view
of the provisions of the Constitution of India
so as the Uttar Pradesh Government Servant
(Discipline and Appeal) Rules, 1999.

12. Learned Single Judge, however,
relied on the judgment of the Apex Court in
the case of K. Venkateshwarlu (supra). It is
without realizing that judgment aforesaid is
not authority on the subject and does not
propound a ratio on the issue. It was a case
where appeal was preferred against the order
of conviction. It has relied the judgment in the
case of R.P. Kapur (supra) which again was
not involving the issue rather it was a case
where an order of suspension was challenged.
Both the judgments could not have been
applied in conflict with statutory provisions so
as the provisions of Constitution of India.

13. In the case of R.P. Kapur (supra),
the challenge was made to the order of
suspension dated 16.02.1962 and it was
mainly in reference to Article 314 of the
Constitution of India. In para 9 of the said
judgment, arguments of counsel for the
appellant were considered but it does not
propound a ratio on the issue. If one is
convicted in a criminal case yet a disciplinary
inquiry in regard to the same charges is to be
conducted before passing order of punishment
then it would not only hit the constitutional
provision under Article 311 of the Constitution
of India but the Uttar Pradesh Government
Servant (Discipline and Appeal) Rules, 1999
also.

14. The judgment in the case of Tulsi
Ram Patel (supra) propounds a ratio. An
order of punishment can be passed based on
the conviction though while doing it, conduct
of the employee led to conviction should be
looked into.

15. In view of the above, judgment of
the Apex Court in the case of Tulsi Ram
Patel (supra) permits an order of punishment
based on the conduct led to conviction. The
only rider is that punishment should not be
imposed simply based on conviction but
considering the conduct led to his conviction.
Learned Single Judge ignored the ratio
propounded by the Apex Court in the said
case.

16. Considering the arguments of
learned counsel for the parties, we find
reasons to cause interference in the
judgment dated 27.09.2019 passed by
learned Single Judge.

17. Accordingly, the appeal is
allowed and the judgment dated 27.09.2019
passed by learned Single Judge is set aside.
----------
512 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)09ILR A512
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.08.2021

BEFORE

THE HON'BLE MUNISHWAR NATH
BHANDARI, A.C.J.
THE HON'BLE MANISH KUMAR, J.

Special Appeal Defective No. 233 of 2021
&
Special Appeal Defective No. 234 of 2021

State of U.P. & Anr. ...Appellants
Versus
Mohit Kumar & Ors. ...Respondents

Counsel for the Appellants:
C.S.C.

Counsel for the Respondents:
Gaurav Mehrotra, Badrish Kumar Tripathi

A. Service Law - UP Ganna Paryaveshak
(Group III) Service Rules, 2015 - Rule 9 -
Post of Cane Supervisor - Appointment -
Qualification - CCC Certificate issued by
DOEACC Society - As per Rule 9, one
should be in possession of Bachelor's
degree in Agriculture Science apart from
CCC Certificate of DOEACC Society -
Petitioner is not in possession of CCC
Certificate in computer operation - It's
effect - Held, the petitioner is not eligible
for appointment on the post of Cane
Supervisor
-
Qualification
is
to
be
determined by the employer for any post
and it is not for the Courts to consider and
assess the possession of qualification -
Learned Single Judge placed reliance on
the administrative orders ignoring the
statutory provisions. (Para 11, 20 and 24)
B. Interpretation of Statute - Statute and
Administrative
order
-
Conflict
-
Overriding effect - An administrative
order
can
supplement
the
statutory
provisions but cannot supplanted it - It
was
not
in
the
domain
of
the
administration to issue order dehors the
statutory provisions. (Para 17)
Appeal allowed. (E-1)
Cases relied on :-
1. Dhananjay Malik & ors. Vs St. of Uttaranchal
& ors., (2008) 4 SCC 171
2. U.O.I. Vs K.P. Joseph & ors., (1973) 1 SCC
194
3. U.O.I. & anr. Vs Ashok Aggarwal; (2013) 16
SCC 147
4. Govt. of A.P. & ors. Vs P. Laxmi Devi; (2008)
4 SCC 720
5. Zahoor Ahmad Rather & ors.Vs Sheikh
Imtiyaz & ors., (2019) 2
SCC 404
6. Maharashtra Public Service Commission Vs
Sandeep Shriram Warade; (2019) 6 SCC 362
7. P.N.B. Vs Amit Kumar Das; 2020 SCC Online
SC 897

(Delivered by Hon'ble Manish Kumar, J.)

1. The aforesaid two appeals are
against the common judgment dated
10.03.2021, which is impugned in both the
appeals, thus, the appeals are being decided
by a common judgment.

2. There is a delay in filing of the
present special appeals.

Reasons
mentioned
in
the
affidavit filed along with application for
condonation of delay are found to be
satisfactory, hence, the delay in filing the
special appeals is condoned and the appeal
are heard on merit.

3. The private respondents in the
present appeals had preferred writ petitions
for non consideration of their candidature