# Sunil Kumar Gupta v. State of U.P. & Ors

- **Citation:** (2015) 3 ILRA 1228
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-09-01
- **Case number:** Writ-A No. 8068 of 2011
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunil-kumar-gupta-v-state-of-u-p-ors-43378
- **Pages:** 7

## Headnote

Constitution
of
India,
Art.-311(1)-
Dismissal of Senior Assistant-working in
district
employment
office
Mathuraappointed and promoted by Director-being
appointing authority under Rule 3(a) of
U.P. Training and employment ministerial
service Rules 1981-whether the Regional
employment officer empowered to pass
impugned
dismissal?-held-'No'
reasons
discussed.
Held: Para-29
The clarification so furnished is in sync with
the position of law as noted herein above.
Hence, the stand taken by the respondents
that the Regional Employment Officer is the
person who appointed the petitioner on
promotion is not borne out from the material
brought on record, rather the record would
reflect that appointment and promotion
could have been made at the Directorate
level
alone,
as
the
circular
noted
hereinabove,
would
provide.
The
respondents in practice have followed the
circular for a prolonged period without
amending the statutory Rules 1981. Even
taking a case, otherwise, the order of
promotion was admittedly passed and issued
by the Director who being an higher officer
than the
appointing authority Regional
Employment Officer, the impugned order of
removal could not have been passed by the
Regional Employment Officer nor it could
have been cured in appeal by the Director.
Case Law discussed:
AIR 1964 SC 449; AIR 1957 All 439; AIR 1949 PC
112; AIR 1955 SC 70 (73); AIR 1970 SC 679;
AIR 1982 SC 1407; AIR 1957 MP 126 (128); AIR
1962 Raj. 258; (1969) 2 SCC 108; AIR 1970 SC
1255 (1262); AIR 1967 SC 459 (462); (2003) 4
SCC 753, 757 (para-8); AIR 1977 SC 747 (para
13); AIR 1977 SC 1233 (paras 10, 13); (2006) 12
SCC 373, 375 (para 7); AIR 1982 SC 1394 (para
4); AIR 1977 SC 747 (paras 14-15).

## Text

1228
 INDIAN LAW REPORTS ALLAHABAD SERIES
for taking an appropriate action if the Zila
Panchayat does not respond to the
recommendations made by the District
Magistrate as per the provisions of
Section 225 of the 1961 Act.
31. This in our opinion, would be a
purposive interpretation of the powers
available in the hands of the Collector /
District Magistrate in order to supervise
the functioning of the Zila Panchayat and
make such recommendations to the Zila
Panchayat that may be necessary for
discharge of its obligations under the
1961 Act.
32. The District Magistrate also has
emergency powers for urgent work as per
Section 229 but such powers nowhere
clothe him / her with powers of Section
228 which are exclusively with the
Prescribed Authority
who under the
notification is the Commissioner.
33. Consequently for all the aforesaid
reasons, the District Magistrate / Collector on
the basis of any material that may be relevant
for consideration of Commissioner for
exercise powers under Section 228 can make
such recommendations for an independent
assessment . This can also be preceded by a
preliminary fact finding enquiry.
34. Sri Khan, learned counsel
contends that in the instant case, this is
the second round of harassing the
petitioner as in the previous year the Zila
Panchayat had been harassed in a same
fashion and the repeated action is
malafide. He further submits that so far as
setting up of a three member committee is
concerned by the Collector even that
committee has not adversely reported
against the petitioner. Thus there was no
material for the Collector to make any
recommendations to the Commissioner as
has
now
been
done
under
the
communication dated 26.10.2015. In our
opinion it is upon the Commissioner to
take an independent decision if there is no
adverse material against the petitioner.
35. We, therefore, allow this petition
and we also strike down the orders dated
08.08.2015 and 10.08.2015 passed by the
Collector restraining the Zila Panchayat
from opening of the tenders. This should
not be construed as the tenders being
approved by us and shall however be
subject to any action which may be taken
by the Commissioner in exercise of the
powers under Section 228 of the 1961 Act
or any other provisions under the Act if
permissible without prejudice to the rights
of the Zila Panchayat and its authorities to
take appropriate lawful steps in respect of
the tenders. The tenders shall be forthwith
handed over to the Executive Officer of
the Zila Panchayat that is in the custody
of a Magistrate as per the orders of this
Court.
36. The writ petition is allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.09.2015
BEFORE
THE HON'BLE SUNEET KUMAR, J.
Writ-A No. 8068 of 2011
Sunil Kumar Gupta
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Vatsal
Srivastava,
Ashok
Khare,
V.
Srivastava
Counsel
for
the
Respondents:
3 All] Sunil Kumar Gupta Vs. State of U.P. & Ors.
1229
C.S.C., H.N. Singh, Somveer Singh
Constitution
of
India,
Art.-311(1)-
Dismissal of Senior Assistant-working in
district
employment
office
Mathuraappointed and promoted by Director-being
appointing authority under Rule 3(a) of
U.P. Training and employment ministerial
service Rules 1981-whether the Regional
employment officer empowered to pass
impugned
dismissal?-held-'No'
reasons
discussed.
Held: Para-29
The clarification so furnished is in sync with
the position of law as noted herein above.
Hence, the stand taken by the respondents
that the Regional Employment Officer is the
person who appointed the petitioner on
promotion is not borne out from the material
brought on record, rather the record would
reflect that appointment and promotion
could have been made at the Directorate
level
alone,
as
the
circular
noted
hereinabove,
would
provide.
The
respondents in practice have followed the
circular for a prolonged period without
amending the statutory Rules 1981. Even
taking a case, otherwise, the order of
promotion was admittedly passed and issued
by the Director who being an higher officer
than the
appointing authority Regional
Employment Officer, the impugned order of
removal could not have been passed by the
Regional Employment Officer nor it could
have been cured in appeal by the Director.
Case Law discussed:
AIR 1964 SC 449; AIR 1957 All 439; AIR 1949 PC
112; AIR 1955 SC 70 (73); AIR 1970 SC 679;
AIR 1982 SC 1407; AIR 1957 MP 126 (128); AIR
1962 Raj. 258; (1969) 2 SCC 108; AIR 1970 SC
1255 (1262); AIR 1967 SC 459 (462); (2003) 4
SCC 753, 757 (para-8); AIR 1977 SC 747 (para
13); AIR 1977 SC 1233 (paras 10, 13); (2006) 12
SCC 373, 375 (para 7); AIR 1982 SC 1394 (para
4); AIR 1977 SC 747 (paras 14-15).
(Delivered by Hon'ble Suneet Kumar, J.)
1. The triable question raised by the
contesting parties is as to whether the
Regional Employment Officer, Agra
Region,
Agra
was
competent
to
remove/dismiss the petitioner, holding the
post of Senior Assistant in the office of
the District Employment Office, Mathura,
being an authority subordinate to that by
which the petitioner was appointed.
2. The service condition of the
petitioner is governed under U.P. Training
and Employment Ministerial Service
Rules 19811.
3. The facts of the case, briefly is, that
the petitioner was appointed Lower Division
Clerk2 in the office of Government Industrial
Training
Institute
(G.I.T.I.),
Mathura,
subsequently, was promoted to the post of
Senior Assistant on 06 December 2006 by
the second respondent, Director, Training
and Employment, Lucknow3. The petitioner
while working at Mathura, was placed under
suspension on 06 August 2009, charge
sheeted on 04 November 2009 containing
eight charges issued by the Enquiry Officer,
Regional Employment Officer, Jhansi, which
was countersigned by the third respondent,
Regional
Employment
Officer,
Agra
Division, Agra in the capacity of appointing
authority/disciplinary
authority.
Upon
conclusion of the enquiry, the third
respondent, Regional Employment Officer,
Agra
Division,
Regional
Employment
Office, Agra by the impugned order dated 24
July 2010 imposed major penalty of
dismissal upon the petitioner.
4. Aggrieved, petitioner preferred an
appeal before the second respondent,
Director, which was rejected on 13
December
2010.
The
petitioner
is
assailing the aforementioned orders solely
on the ground that the third respondent,
Regional Employment Officer, Agra is
not the appointing authority, the second
1230
 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent, Director being the appointing
authority,
could
have
removed
the
petitioner, therefore, the order of dismissal
is void ab initio.
5. The contention of Sri Ashok Khare,
learned Senior counsel appearing for the
petitioner is that the entire enquiry stands
vitiated as the disciplinary proceedings were
initiated by an officer subordinate to that of
the
appointing
authority/disciplinary
authority. The petitioner admittedly was
promoted on the post of Senior Assistant by
the Director. Pursuant thereof, petitioner was
posted at District Employment Office. The
suspension order, the charge sheet and the
impugned dismissal order which was passed
by
the
third
respondent,
Regional
Employment Officer, who being subordinate
in rank and status to that of the Director
could not have removed the petitioner.
6. In rebuttal, Sri H.N. Singh,
learned senior counsel appearing for fifth
respondent,
Regional
Employment
Officer, Agra Division, Agra and the
learned Standing Counsel appearing for
the State respondents would submit that
the petitioner was promoted on the post of
Upper
Division
Clerk4
which
was
subsequently
redesignated
Senior
Assistant under the Rules 1981. The
appointing authority of Upper Division
Clerk under the Rules 1981 is the
Regional
Employment
Officer,
the
petitioner being an officer under Field
Staff and not an officer of the Directorate,
the Regional Employment Officer was the
competent authority, therefore, would
urge there is no illegality or infirmity in
the impugned order. The order is intra
vires of Article 311.
7. Rival submissions fall for
consideration.
8. It is admitted between the parties
that the petitioner is an officer of the Field
Staff and not of the Directorate. As to
who is the appointing authority of the
petitioner, the Rules 1981 governing the
petitioner needs to be examined. Subclause (a) of Rule 3 defines 'appointing
authority' which means an authority
mentioned in Appendix 'A' to the Rules.
The 'Directorate' means the head quarters
office of the Director. Sub-clause (f) of
Rule 3 defines 'Field Staff' which means
the ministerial staff, other than the
headquarter staff, working in the field
offices; sub-clause (g) defines 'Field
Office'; which means an office other than
the Directorate but functioning under the
administrative control of the Director.
Sub-clause (j) defines 'Headquarters Staff'
which means the ministerial staff of the
Directorate.
9. Part III of the Rules 1981 provide
for 'Recruitment', Rule 5 specifies the
source of recruitment. The staff under
Rule 5 are divided in two heads: (i)
Headquarter Staff and (ii) Field Staff.
Sub-clause (xi) under 'headquarter staff'
refers to Senior Assistant and other
equivalent posts/position and provides
their source of recruitment. Sub-clause
(xi) reads as follows:-
"Senior
Assistant/Noter
and
Drafter/Assistant
Accountant/Upper
Division clerk/Inspector of Accounts
Stock
Verifier-By
promotion
from
amongst
permanent
Compilation
Assistants, Junior Noter and Drafters,
Record Keepers and Accounts Clerk:"
10. Under the 'Field Staff', Subclause (viii) provides the source of
recruitment for Head clerk/ UDC, which
is extracted:-
3 All] Sunil Kumar Gupta Vs. State of U.P. & Ors.
1231
(viii)
Accountant/Accountant-cumCashier/ Head Clerk/Upper Division
Clerk/Store
Keeper
(Regional
Employment Exchange of Kanpur).- By
promotion
from
amongst
permanent
Lower Division Clerks/ Guides/Typists/
Career Room Guides."
11. The petitioner admittedly being
a field staff and not a headquarter staff,
was promoted from the post of LDC to
the post of Senior Assistant as is reflected
from the promotion order passed by the
Director.
The
Rules
1981
referred
hereinabove, would reveal that under the
head of Field Staff, there is no post of
Senior Assistant. LDC gets promoted to
the post of UDC/Head Clerk. In Appendix
'A' to the Rules 1981, the appointing
authority
for
the
post
of
Senior
Assistant/UDC under 'Headquarter Staff'
is the Director, whereas, Head Clerk/UDC
under the Field Staff, the appointing
authority is the Regional Employment
Officer/Principal. There is no post of
Senior Assistant under the Field Staff.
The pay scales of both the post, Senior
Assistant under the Headquarter staff and
Head Clerk/UDC under the Field Staff are
different. The pay scale of Senior
Assistant is higher as compared to that of
the UDC working under the Field Staff,
probably,
therefore,
the
appointing
authority are different officers.
12. Learned counsel for the parties
would not dispute that subsequently the
pay scale of the Senior Assistant and
UDC were brought at par, at the time of
promotion the pay scales were equal but
the appointing authority continued to be
distinct.
13. In view of the position as
emerges upon examining the Rule 1981,
Sri H.N. Singh, Senior Counsel would
submit that the petitioner being a LDC
under the Field Staff, was promoted to the
post of UDC which subsequently was
designated Senior Assistant, therefore, the
appointing
authority
of
the
Senior
Assistant/UDC at the Head Quarter is the
Director/Joint Director, whereas, the
appointing authority of UDC for Field
Staff being the Regional Employment
Officer, hence, would urge there is no
illegality or infirmity in the impugned
order.
14. The principle enshrined in Subclause (1) of Article 311 is that no person
who is a member of the civil service or
holds a civil post under the Union or State
shall be dismissed or removed by any
authority subordinate to that by which he
was appointed. The parties do not dispute
that the petitioner is holding a civil post.
15. The clause applies only if the
following conditions are satisfied.
"(a) That the person whose services
are terminated is a member of a civil
service or holds a civil post.
(b) That such termination amounts to
'dismissal' or 'removal5. Thus, Clause (1)
need not be complied with where a person
is discharged in terms of conditions of his
contract of service6. Similarly, where the
penalty awarded is other than dismissal or
removal, e.g., reduction in rank, or
suspension, it may be awarded by an
authority who is empowered in that behalf
by the Rules even though he is not the
'appointing authority'."
16. A dismissal by an officer
subordinate to the appointing authority is
null and void. The defect goes to the root
of the order of dismissal and is not cured
1232
 INDIAN LAW REPORTS ALLAHABAD SERIES
even if that order is confirmed on appeal
by the 'appointing authority' or some other
superior authority7.
17.
On the other hand, this clause
does not require that the dismissal or
removal must be ordered by the very same
authority who made the appointment or by
his direct superior. There is a compliance
with the clause if the dismissing authority is
not lower in rank or grade than the
appointing authority8. It follows that
dismissal by an authority superior to the
appointing authority is not bad.
18. The dismissal is not invalid
where the order of dismissal is passed by
the appointing authority but the order is
merely
communicated
by
some
subordinate officer.
19. It is for the Government servant
to plead and prove who was his
'appointing authority' and also that the
dismissing authority is lower in rank than
the appointing authority9. 'Subordinate'
refers to subordinate in rank10 and not in
respect of function11.
20. Therefore, where the order of
dismissal is made by an authority
subordinate to the appointing authority,
the unconstitutionality is not cured by the
fact that the order of dismissal is
confirmed, on appeal by the proper
authority. On the same principle, the
appointing authority cannot delegate his
power of dismissal of removal to a
subordinate,
so
as
to
destroy
the
protection afforded by the Constitution,
unless the Constitution itself authorises
such delegation by other provisions12. It
is not possible for the proper authority to
validate
an
order
made
without
jurisdiction, with retrospective effect.13
21. If the dismissing authority is not
subordinate in rank to the appointing
authority, any difference in designation is
not material14. Thus in order to ascertain
who was the 'appointing authority' for the
purposes of application of Art. 311(1), the
formal document on the basis of which
the civil servant holds his appointment
must be looked into.
22. Hence, when a person is, in fact,
appointed by an authority superior to the
authority who is entitled, under the
Departmental Rules, to appoint that
person, he can be dismissed only by that
authority who had, in fact, ordered that
appointment
and
not
the
authority
empowered by the Rules. Where a person
is confirmed in a higher post in which he
was officiating it is the officer who issues
the order of confirmation who becomes
his 'appointing, authority' and not the
higher officer who may have selected him
for such confirmation.15
23. Where the power to appoint is
vested by a statutory provision in one
authority, to be exercised on the advice of
another, it is the former who is to be
regarded as the 'appointing authority'.16
Recommending/approving authority does
not thereby become the appointing
authority.17
24. Where the conditions of service
were
kept
intact
by
the
States
Reorganisation Act, 1956, an employee,
who was appointed prior to such
reorganisation, cannot be dismissed, after
reorganisation, by any authority lower
than the authority who had appointed him,
or an authority equivalent to or coordinate in rank with the appointing
authority. Thus, where the employee was
appointed by the then Head of the
3 All] Sunil Kumar Gupta Vs. State of U.P. & Ors.
1233
Department, he cannot be dismissed by
anybody subordinate to the corresponding
Head
of
the
Department,
after
reorganisation;18 nor can a person
appointed
by
the
Rajpramukh
be
dismissed by a Financial Commissioner
(who is subordinate to the Governor),
except with the previous approval of the
Central Government.19
25. The departmental proceeding
can be initiated by a person lower in rank
than the appointing authority but the final
order can be passed only by the
appointing authority or an authority
higher than it.20
26. The onus of producing all
relevant
papers
to
show
that
the
dismissing authority was lower in rank
than the appointing authority is upon the
petitioner.21
27. Dismissal order passed by a
subordinate is void ab initio.22 Hence, the
fact that such order was subsequently
confirmed in appeal by the Head of the
Department will not cure the initial
defect.23
28.
Having considered the legal
position and binding precedent, applying it
to the facts of the case. The record would
reveal that in reply sought under the Right
to Information Act dated 06 January 2011,
respondent informed that the petitioner was
promoted
as
Senior
Assistant,
the
designation of the post came on the
recommendation
of
the
Fourth
Pay
Commission in 1986, petitioner was
promoted by the Director. The information
so furnished is also reflected from the other
material brought on record. Promotion is a
mode of appointment. The order of
promotion was issued by the Director,
therefore, the appointing authority of the
petitioner for the purpose of Article 311
would be the Director, who vide letter dated
6 October 2011 sought an explanation from
the Regional Employment Officer that under
what circumstances he had passed the order
of dismissal when admittedly the promotion
was issued by the Director. But the second
respondent, Director, while deciding the
appeal of the petitioner accepted the view
taken by the Regional Employment Officer
that under Rules 1981 it is the Regional
Employment Officer who is the appointing
authority of the UDC and placing reliance on
the Government Order dated 19 February
1988 rejected the plea of the petitioner. The
Government Order dated 19 February 1988
(at Annexure 46) of the record was dealing
with a situation, where a superior authority
made
the
appointment/promotion,
subsequently the confirmation order was
passed by the appointing authority who is
lower in rank, the question that arose for
clarification was as to who is the competent
authority to exercise power under Article
311(1). The Government Order clarified that
it would be the officer who appointed the
Government servant though he may not be
the designated appointing authority under the
Rules.
29. The clarification so furnished is in
sync with the position of law as noted herein
above. Hence, the stand taken by the
respondents that the Regional Employment
Officer is the person who appointed the
petitioner on promotion is not borne out from
the material brought on record, rather the
record would reflect that appointment and
promotion could have been made at the
Directorate level alone, as the circular noted
hereinabove,
would
provide.
The
respondents in practice have followed the
circular for a prolonged period without
amending the statutory Rules 1981. Even
1234
 INDIAN LAW REPORTS ALLAHABAD SERIES
taking a case, otherwise, the order of
promotion was admittedly passed and issued
by the Director who being an higher officer
than the appointing authority Regional
Employment Officer, the impugned order of
removal could not have been passed by the
Regional Employment Officer nor it could
have been cured in appeal by the Director.
30. Therefore, the appellate authority
while passing the impugned order dated 24
July 2010 misread the Government Order
dated 19 February 1988, further the
Directorate by Circular dated 31 August
1989 addressed to all the Regional
Employment
Officer/District
Officer
clarified that upon enforcement of the new
staff proposed promotion, absorption and
appointment of all senior clerks would,
henceforth be made at the Directorate level.
The circular in irrevocable terms would
provide that promotion from the LDC to
Senior Assistant shall not be made at the
Regional level, in the eventuality of any
such promotion being made it shall be
treated to be void, consequently the
employee shall not receive any benefit
pursuant to such promotion. It is relevant to
note that the initiation for promotion to the
post of Senior Assistant was undertaken by
the Directorate vide letter dated 02
November 2006, the name of the petitioner
finds place at Serial No. 8. Petitioner in
appeal before the second respondent,
Director, raised the issue that the Regional
Employment Officer was not competent to
have initiated disciplinary proceedings or
removed him from service. The relevant
documents were placed before the Director
who inspite of being aware that the
Regional Employment Officer was not
competent to initiate or promote an officer
to the post of Senior Assistant/UDC
deliberately had taken recourse to the
unamended Rules 1981 to justify the illegal
order passed by the Regional Employment
Officer.
31. The counter affidavits filed by
the respondents are prima facie false
affidavits, the averments made therein do
not correspond to the circulars/letters
issued by the Director.
32.
For the reasons and law stated
herein above, the writ petition succeeds and
is accordingly allowed. The impugned
orders dated 24 July 2010 passed by the
third respondent, Regional Employment
Officer, Agra Division, Agra and order
dated 13 December 2010 passed by the
second respondent, Director, Training and
Employment, Lucknow, respectively are
quashed. The petitioner shall be entitled to
all consequential benefits including lost
wages from the due date.
33. I would like to record my
appreciation for Sri Aishwarya Krishna,
Law Clerk for research work undertaken
by him in the assistance of this case.
34. The cost of litigation assessed at
Rs. 50,000/-, to be paid to the petitioner by
the second respondent, Director, Training
and Employment, Lucknow within six
weeks.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.10.2015
BEFORE
THE HON'BLE DINESH MAHESHWARI, J.
THE HON'BLE RAKESH SRIVASTAVA, J.
Misc. Bench No. 9441 of 2015
Asok Pande [PIL]
...Petitioner
Versus
Union of India & Ors.
..Respondents