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

- **Citation:** (2022) 9 ILRA 223
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-18
- **Case number:** Writ A No. 55825 of 2015
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surendra-kumar-gupta-v-state-of-u-p-ors-48996
- **Pages:** 22

## Headnote

A. Service Law
- UP Intermediate
Education
Act,
1921
-
Regulations
framed under the Act of 1921 - Reg. 32
&
33
-
UP
High
Schools
and
Intermediate
Colleges
(Payment
of
Salaries
of
Teachers
and
other
Employees) Act, 1971 - Punishment of
withholding two increments - Prior
approval of the Board not obtained, how
far
invalidate
punishment
-
Held,
assuming
that
the
punishment
of
withholding two increments, has been
inflicted in accordance with Law, after
following
the
procedure
prescribed
under the Regulations contained in
Chapter III of the Regulations framed
under the Act of 1921, the punishment
would still be void, unless there was
prior approval thereof by the Board
constituted under the Act of 1982. (Para
23)
B. Service Law - Regulations framed
under the Act of 1921 - Reg. 72 & 73 -
Entitlement of promotion and promotion
grade salary - Adverse entry in service
book - Non-communication of adverse
entry to the teacher - No opportunity to
represent against it - Effect - Held,
recording adverse entries behind the
petitioner's back, which were never
communicated to him, contrary to the
provisions of Regulation 72, cast a
shadow
of
grave
doubt
about
the
authenticity the resultant validity of the
adverse
entries,
on
which
the
respondents rely
- Uncommunicated
adverse ACRs/entries cannot be relied
upon for the purpose of consideration
for promotion. (Para 38 and 39)
C.
Service
Law
-
Promotion
-
Entitlement - Pendency of criminal case
- Effect - Held, the Law relating to
promotion, grant of promotion pay scale
etc. against an employee, who is facing
disciplinary
proceedings
or
criminal
charges, is not that such an employee is
not to be considered for the grant of
promotion or promotion pay scale at all.
(Para 42)
D. Interpretation of Statute - Mandate
of statute - Mala fide in Law - If
statutory
regulations
require
a
particular thing to be done in a specified
manner, it has to be done in that manner
- If a mandatory provision in a statutory
regulation,
that
has
adverse
civil
consequences
on
the
rights
of
an
employee, is observed in breach, there is
a clear case of mala fides in Law. (Para
38)
Writ petition allowed. (E-1)
224 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:-

## Text

_Characters 0–39,920 of 76,728. This is a partial read: ask again with offset=39920 for what follows._

9 All. Surendra Kumar Gupta Vs. State of U.P. & Ors.
223
22.2.2022 passed by the opposite party no.
3 i.e. Chairman, Consultative Committee /
1st Additional District Judge, Agra as well
as the consequential letters / orders dated
3.3.2022 and 16.08.2022 are hereby set
aside and quashed and a fresh decision
shall be taken strictly in accordance to law
in terms of the aforesaid directions within
aforesaid stipulated time.

17. Accordingly the writ petition is
allowed.

18. No order as to costs.
----------
(2022) 9 ILRA 223
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.08.2022

BEFORE

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

Writ A No. 55825 of 2015

Surendra Kumar Gupta ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Santosh Kumar Mishra

Counsel for the Respondents:
C.S.C., Sri Arun Kumar Gupta

A. Service Law
- UP Intermediate
Education
Act,
1921
-
Regulations
framed under the Act of 1921 - Reg. 32
&
33
-
UP
High
Schools
and
Intermediate
Colleges
(Payment
of
Salaries
of
Teachers
and
other
Employees) Act, 1971 - Punishment of
withholding two increments - Prior
approval of the Board not obtained, how
far
invalidate
punishment
-
Held,
assuming
that
the
punishment
of
withholding two increments, has been
inflicted in accordance with Law, after
following
the
procedure
prescribed
under the Regulations contained in
Chapter III of the Regulations framed
under the Act of 1921, the punishment
would still be void, unless there was
prior approval thereof by the Board
constituted under the Act of 1982. (Para
23)
B. Service Law - Regulations framed
under the Act of 1921 - Reg. 72 & 73 -
Entitlement of promotion and promotion
grade salary - Adverse entry in service
book - Non-communication of adverse
entry to the teacher - No opportunity to
represent against it - Effect - Held,
recording adverse entries behind the
petitioner's back, which were never
communicated to him, contrary to the
provisions of Regulation 72, cast a
shadow
of
grave
doubt
about
the
authenticity the resultant validity of the
adverse
entries,
on
which
the
respondents rely
- Uncommunicated
adverse ACRs/entries cannot be relied
upon for the purpose of consideration
for promotion. (Para 38 and 39)
C.
Service
Law
-
Promotion
-
Entitlement - Pendency of criminal case
- Effect - Held, the Law relating to
promotion, grant of promotion pay scale
etc. against an employee, who is facing
disciplinary
proceedings
or
criminal
charges, is not that such an employee is
not to be considered for the grant of
promotion or promotion pay scale at all.
(Para 42)
D. Interpretation of Statute - Mandate
of statute - Mala fide in Law - If
statutory
regulations
require
a
particular thing to be done in a specified
manner, it has to be done in that manner
- If a mandatory provision in a statutory
regulation,
that
has
adverse
civil
consequences
on
the
rights
of
an
employee, is observed in breach, there is
a clear case of mala fides in Law. (Para
38)
Writ petition allowed. (E-1)
224 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:-
1. Ramesh Chandra Mishra Vs U.P. Secondary
Education Services Commission, Allahabad &
ors.; (1990) 1 UPLBEC 488
2. Sukhdev Singh Vs U.O.I. & ors.; (2013) 9 SCC
566
3. Rukhsana Shaheen Khan Vs U.O.I. & ors.;
(2018) 18 SCC 640
4. U.O.I. & ors. Vs K.V. Jankiraman & ors.;
(1991) 4 SCC 109
5. U.O.I. & ors. Vs Anil Kumar Sarkar; (2013) 4
SCC 161

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

1. The reliefs sought in this petition
are so many and so much lavish in detail,
that it would be wise to quote the prayer
clause verbatim. The prayer clause
(limited to the material reliefs alone here)
reads:

i) issue, a writ, order or direction
in the nature of certiorari quashing the part
of the impugned order 12.12.2014 whereby
the benefits for which the Petitioner is
entitled have been rejected.

ii) issue, a writ, order or direction
in the nature of mandamus directing the
respondents to pay the arrears of increment
of July 2009 for the period July 2009 to
November 2010 alongwith interest.

iii) issue, a writ, order or
direction in the nature of mandamus
directing the respondents to pay the arrears
of increment of July 2010 for the period
July 2010 to November 2010 alongwith
interest.

iv) issue, a writ, order or
direction in the nature of mandamus
directing the respondents that the petitioner
may be given the benefit of revised pay
scale of Grade Pay of Rs. 5400/- with effect
from 1.2.2010 alongwith interest.

v) issue, a writ, order or direction
in the nature of mandamus directing the
respondents that the petitioner may be
provided the payment of difference of
salary and subsistence allowance with
effect
from
1.04.2009
to
31.05.2010
alongwith interest.

vi) issue, a writ, order or
direction in the nature of mandamus
directing the respondents that the petitioner
may be paid the salary with effect from
25.03.2009
to
31.03.2009
alongwith
interest.

vii) issue, a writ, order or
direction in the nature of mandamus
directing the respondents that the salary of
the strike period of 35 days (with effect
from 16.01.1984 to 19.02.1984) may be
paid to the petitioner alongwith interest.

viii) issue, a writ, order or
direction in the nature of mandamus
directing the respondents that a sum of Rs.
385/- of G.P.F. may be paid to the
petitioner alongwith interest."

2. Out of these manifold reliefs, the
learned Counsel for the petitioner in his
wisdom has not pressed Relief Nos. (vii)
and (viii) at the hearing.

3. In order to appreciate the
petitioner's grievance, the redressal whereof
he seeks, it would be apposite to refer to
facts that have given rise to this petition.
The Ram Prasad Bismil Higher Secondary
School, Divnapur, District Bareilly is a
recognized College under the Uttar Pradesh
Intermediate Education Act, 1921 (for
short, 'the Act of 1921'). The aforesaid
intermediate college shall hereinafter be
referred to as 'the College'. The College is
in receipt of grant-in-aid from the State
Government and salaries to its teachers and
other employees are paid out of funds
provided by the State Government under
9 All. Surendra Kumar Gupta Vs. State of U.P. & Ors.
225
the Uttar Pradesh High Schools and
Intermediate Colleges (Payment of Salaries
of Teachers and other Employees) Act,
1971. The said Act shall hereinafter be
called as 'the Act of 1971'.

4. The petitioner was appointed as a
teacher in the College in the B.T.C. Grade
on 01.02.1973. After completion of five
years' service in the B.T.C. Grade, the
petitioner was appointed as an assistant
teacher in the C.T. Grade. Upon the C.T.
Grade being declared a dying cadre and the
petitioner completing ten years' service in
the C.T. Grade, he automatically became a
teacher in the L.T. Grade. He was absorbed
in the L.T. Grade w.e.f. 01.02.1988. Upon
completion of ten years of regular service
in the L.T. Grade, the petitioner was
granted
L.T.
Selection
Grade
w.e.f.
01.02.1998. He was appointed as the ad
hoc Principal vide order dated 06.01.2010
passed by the District Inspector of Schools,
Bareilly and worked as such up to April,
2011.
He
retired
from
service
on
30.06.2012 upon attaining the age of
superannuation. At
the
time
of
his
retirement, he was serving the College as
an assistant teacher in the L.T. Grade
(placed in the Selection Grade).

5. At this stage, it is necessary to look
at some events that happened in the year
2009 and their cascading effect upon the
petitioner's service record, emoluments and
post retiral benefits. While the petitioner
was the seniormost L.T. Grade Teacher in
the College, he was given the charge of
Centre Superintendent for the purpose of
holding the Board Examinations, conducted
by the U.P. Board of High School and
Intermediate Education in the year 2009.
On 19.03.2009, a Flying Squad of the
Intermediate Education Board alighted on
the College premises, just 10 minutes into
the examinees commencing writing their
scripts. No examinee was using or found to
be using unfair means by the Flying Squad.

6. A First Information Report dated
24.03.2009, giving rise to Case Crime
No.209 of 2009, under Section 3/10 of the
Uttar
Pradesh
Public
Examination
(Prevention of Unfair Means) Act, 1998
(for short, 'the Act of 1998'), Police Station
Hafijganj, District Bareilly, was lodged
against the petitioner at the behest of the
Principal of the College, who is now the
Manager, inasmuch as the Principal had not
been entrusted with the assignment of the
Centre Superintendent by the Board. The
petitioner further asserts that no examinee
was found using unfair means by the
Board, in consequence whereof results of
all the examinees were declared by the
Board. Nevertheless, a charge sheet dated
26.05.2009 was filed against the petitioner
in the crime under Section 3/10 of the Act
of 1998.

7. The petitioner challenged this
charge sheet before this Court through an
application under Section 482 of the Code
of Criminal Procedure. In the aforesaid
case, being Application u/s 482 No. 34506
of 2009, this Court vide order dated
04.01.2010 ordered issue of notice to the
other side and directed that till the next date
of listing, no coercive action shall be taken
against the petitioner.

8. On account of the FIR, that was
lodged against the petitioner, the petitioner
points out that he was placed under
suspension
by
the
Management
on
29.03.2009. Later on, by an order dated
29.05.2010 passed by the Committee of
Management of the College, the suspension
was revoked, subject to the following
conditions:
226 INDIAN LAW REPORTS ALLAHABAD SERIES

"(1) Two increments shall be
denied to the petitioner until time that the
Court of competent jurisdiction delivers
judgment. After judgment by the Court
alone, the Management would consider
reviewing its decision about withholding
the two increments;

(2) The petitioner would not
receive any emolument for the period that
he remained under suspension in addition
to the subsistence allowance; and,

(3) The petitioner would not be
entrusted with any administrative work of
the College."

9. In terms of the aforesaid order, the
petitioner was reinstated in service on
01.06.2010.

10. It is emphasized by the learned
Counsel for the petitioner that neither any
disciplinary proceedings were initiated
against him nor any charge sheet ever
issued. Pursuant to the resolution to
suspend the petitioner, no disciplinary
proceedings were taken, but in terms of the
order of reinstatement, the petitioner has
been virtually punished without inquiry,
with an order withholding two increments
until
the
competent
Criminal
Court
delivered judgment in the case. It is
submitted by the learned Counsel for the
petitioner
that
unless
disciplinary
proceedings were initiated and brought to
their logical conclusion, the respondents
never had the right to withhold two
increments, which constitute one of the
punishments
envisaged
under
the
regulations framed under the Act of 1921.

11. It is argued that in order to inflict
punishment of any kind upon a teacher
serving an institution governed by the Act
of 1921, approval has to be obtained from
the U.P. Secondary Education Service
Selection Board constituted under the Uttar
Pradesh Secondary Education (Services
Selection Board) Act, 1982 (for short, 'the
Act of 1982'). The aforesaid mandatory
permission by the Board, before infliction
of any of the penalties upon a teacher
contemplated under Section 21 of the Act
of 1982, is essential. If the requisite
permission is not taken, the resolution of
the Management inflicting any of the
punishments envisaged under Section 21 of
the Act of 1982 would be void. The learned
Counsel for the petitioner has drawn the
Court's attention to Section 21 of the Act of
1982, which reads:

"21. Restriction on dismissal etc.
of teachers.-The Management shall not,
except with the prior approval of the Board,
dismiss any teacher or remove him from
service, or serve on him any notice of
removal from service, or reduce him in
rank or reduce his emolumcnis or withhold
his increment for any period (whether
temporarily or permanently) and any such
thing done without such prior approval
shall be void."

12. It is urged on behalf of the
petitioner that upon reinstatement w.e.f.
01.06.2010, the petitioner is entitled to
payment of the difference, between his
salary for the period of his suspension and
the subsistence allowance, that he received
during the relevant period of time, in view
of the provisions of Regulation 40 of
Chapter III, framed under the Act of 1921.
However, the petitioner was paid nothing
beyond the subsistence allowance in
enforcement of the order dated 29.05.2010
passed by the Management, which is
manifestly illegal. It is next submitted that
the petitioner is entitled to receive the
promotion pay scale with the grade pay of
Rs.5400/-
w.e.f.
01.02.2010
as
he
9 All. Surendra Kumar Gupta Vs. State of U.P. & Ors.
227
completed 12 years of service in the L.T.
Selection Grade, reckoned with effect from
01.02.1998. It is pointed that this denial has
come owing to the criminal case pending
against him under Section 3/10 of the Act
of 1998. It is urged that the pendency of the
aforesaid case cannot be held against the
petitioner to deny his due promotion pay
scale.

13. The petitioner, aggrieved by the
aforesaid myriad denials of his service
dues, approached this Court by instituting
Writ-A
No.67465
of
2012,
seeking
restoration of all the benefits due to him.
The said petition was disposed of, granting
liberty to the petitioner to represent his case
before the District Inspector of Schools,
Bareilly, who was directed to look into the
petitioner's grievances and redress the
same, in accordance with law, by means of
a reasoned and speaking order, within two
months next of the date of receipt of the
petitioner's representation, accompanied by
a certified copy of this Court's order dated
20.12.2012.

14. In order to avail of whatever relief
this
Court
extended,
the
petitioner
submitted a representation to the District
Inspector of Schools, Bareilly, a copy
whereof is annexed as Annexure No.2 to
the writ petition. All the legal and other
infirmities
pointed
out
hereinabove,
vitiating the conditions imposed by the
respondent Management while reinstating
the petitioner, were set forth in the
representation and pleaded to be illegal in
view of the various statutory provisions
above indicated, or the law generally
applicable. It was, amongst other things,
pointed out in the representation to the
District Inspector of Schools that the
petitioner was entitled to the promotion pay
scale upon completion of 12 years' service
in
the
L.T.
Selection
Grade
w.e.f.
31.01.2010, but the said claim of the
petitioner was rejected by the respondent
Management on ground that his services
were not satisfactory. It was pleaded in the
representation addressed to the District
Inspector of Schools that the petitioner had
never been communicated with any adverse
entry nor the service-book placed before
him for signatures. The petitioner was not
allowed to examine the service-book. The
petitioner's representation was rejected by
the District Inspector of Schools, Bareilly
vide the order impugned dated 12.12.2014.

15. Disillusioned by the order
impugned dated 12.12.2014, the petitioner
has preferred the present writ petition.

16. Heard Mr. Santosh Kumar
Mishra, learned Counsel for the petitioner,
Mr. Sharad Chandra Upadhyay, learned
State Law Officer appearing on behalf of
respondent nos. 1 to 5 and Mr. Arun Kumar
Gupta, learned Counsel appearing on
behalf of respondent nos. 6 and 7.

17. The record has been perused, in
particular, the petitioner's service-book that
was produced before the Court in sealed
cover, since opened and placed on record.

18. The most unusual feature of this
case is that the petitioner stands punished in
terms of the order dated 29.05.2010, by
which he has been reinstated in service.
There are apparently no disciplinary
proceedings taken against the petitioner, for
which there is an elaborate procedure
provided under Regulations 31 to 45 of
Chapter III of the Regulations framed
under the Act of 1921. He has also not been
convicted while in service by the Court of
criminal jurisdiction, where a charge sheet
has been filed against him. Thus, until his
228 INDIAN LAW REPORTS ALLAHABAD SERIES
superannuation
on
30.06.2012,
the
petitioner was neither held guilty in
disciplinary proceedings nor by a Court of
criminal
jurisdiction
for
an
offence
involving moral turpitude. In the absence of
either, it was not at all open to the
respondents to punish the petitioner by
stopping his increments until judgment by
the Criminal Court, in connection with the
charge on the basis of which he was placed
under suspension. The respondents have
called it a condition for the petitioner's
reinstatement,
but
in
substance
the
condition is virtually another name for the
postulated
penalty
of
stoppage
of
increments. The increment no doubt has
been stopped until the happening of an
event i.e. the judgment of the Criminal
Court. It is not known when the Criminal
Court would deliver judgment. Therefore,
the
jurisdiction
exercised
by
the
respondents
to
stop
the
petitioner's
increments numbering two, is absolutely
ultra vires the powers conferred upon them
under Chapter III of the Regulations
framed under the Act of 1921. The power
to inflict any of the punishments, postulated
under Regulations 32 and 33 of Chapter III,
can be exercised at the end of disciplinary
proceedings, duly drawn and concluded or
taking cognizance of the judgment of a
Court of criminal jurisdiction, convicting
the employee on a charge involving moral
turpitude. The exercise of the power to
withhold
the
petitioner's
increments,
numbering two in this case, pending a
decision of the relative criminal case by the
Court is not a valid exercise of power by
the respondents.

19. There is an averment to be found
in Paragraph No. 17 of the counter affidavit
filed
on
behalf
of
the
respondentManagement to the effect that the petitioner
is not entitled to arrears of the difference in
salary and the subsistence allowance for the
period 01.04.2009 to 31.05.2010, as the
charges levelled against him in the
departmental proceedings were found well
proved and he was also punished, stopping
two increments. Nothing has been brought
to the notice of the Court during the
hearing that any order of punishment was
ever passed against the petitioner. The
punishment,
as
the
respondentManagement
unwittingly
concede
in
Paragraph No.17 of the counter affidavit
filed on their behalf, was imposed through
the
exercise
of
a
most
anomalous
jurisdiction, besides being ultra vires, in the
form of an order reinstating the petitioner
in service subject to terms and conditions.
It
is
the
terms
and
conditions
of
reinstatement that carry the order of
punishment, withholding two increments.
This, as already said, could never have
been done.

20. There is nothing said in the
counter affidavit filed on behalf of
respondent Nos. 1 to 5 or the Staterespondents, that may show that any order
of punishment was ever passed against the
petitioner, and that too with the due
approval of the competent Authority, an
issue to which allusion would shortly be
made. In Paragraph No.8 of the counter
affidavit filed on behalf of respondent Nos.
1 to 5, all that is said in defence of the
order withholding increments is that since a
final order has not been passed in the
criminal case, some conditions to the
petitioner's
reinstatement
have
been
imposed. This, as already said, more than
once is not a valid ground to punish a
teacher or an employee by withholding his
increment, as done in the present case.

21. A perusal of the impugned order
dated 12.12.2014 passed by the District
9 All. Surendra Kumar Gupta Vs. State of U.P. & Ors.
229
Inspector of Schools shows that he has
utterly failed to understand the deep flaw in
punishing a teacher, without following the
procedure envisaged in Regulations 32 and
33 of Chapter III of the Regulations,
framed under the Act of 1921. There is
nothing, for a fact, noticed in the impugned
order passed by the District Inspector of
Schools that an order of punishment has
ever been passed against the petitioner. All
that is said is that he was found involved by
the Flying Squad in some activity, while
acting as the Centre Superintendent,
leading to the registration of an FIR against
him under Section 3/10 of the Act of 1998
and
suspended
from
service-pending
inquiry, investigation or prosecution, is not
at all indicated by the District Inspector of
Schools in the order impugned. It also does
not appear anywhere from the records of
the case, produced by the Management, as
to what was the character of the order of
suspension. The District Inspector of
Schools in his order has also held it a valid
exercise of power by the Management that
as
a
condition
for
the
petitioner's
reinstatement, they could withhold two of
his increments, pending decision of the
Criminal Court. The District Inspector of
Schools, untrained in law as he is, cannot
be expected to understand the subtlety of
the law about the valid exercise of power to
punish an employee or a teacher, generally
in
disciplinary
proceedings
or
in
consequence of a conviction by a Court,
and particularly, with reference to the
provisions of Chapter III of the Regulations
framed under the Act of 1921. The District
Inspector of Schools has proceeded to
uphold the validity of the order punishing
the petitioner in an absolutely invalid
exercise of jurisdiction, by withholding two
of his increments by the Management while
reinstating him in service, depending on
vague
reasoning
and
on
irrelevant
considerations. Thus, on this score alone,
the impugned order, insofar it upholds the
punishment of withholding two increments
due to the petitioner, is vitiated.

22. The other reasoning, on the basis
of which this part of the impugned order is
criticized by the learned Counsel for the
petitioner, is that no order of punishment
can be validly passed, unless a prior
approval thereof is granted by the Board,
constituted under the Act of 1982, in terms
of Section 21 of the said Act. This
contention
would
proceed
on
the
supposition
that
a
valid
order
of
punishment has been made against the
petitioner. Here, we have found that there is
no valid order of punishment made against
the petitioner after following the procedure
prescribed in Regulations 32 and 33 of
Chapter III of the Regulations framed
under the Act of 1921. The matter can,
therefore, be left at that and the contention
not examined at all.

23. Assuming, however, that the
punishment of withholding two increments,
has been inflicted in accordance with law,
after following the procedure prescribed
under the Regulations contained in Chapter
III of the Regulations framed under the Act
of 1921, the punishment would still be
void, unless there was prior approval
thereof by the Board constituted under the
Act of 1982. This plea was raised by the
petitioner in his representation to the
District Inspector of Schools, Bareilly
dated 08.01.2013, annexed as Annexure
No.2 to the writ petition, but does not find
mention in the order impugned.

24. The necessity of obtaining prior
permission of the Board constituted under
the Act of 1982, before the valid imposition
of any punishment, fell for consideration of
230 INDIAN LAW REPORTS ALLAHABAD SERIES
a Division Bench of this Court in Ramesh
Chandra Mishra v. U.P. Secondary
Education
Services
Commission,
Allahabad and others, (1990) 1 UPLBEC
488. In Ramesh Chandra Mishra (supra),
it was held:

"13. In the year 1982 U.P.
Secondary Education Services Commission
and Selection Boards Act, 1982 (U.P. Act
No. V of 1982) was promulgated by the
Uttar Pradesh Legislature. This Act shall
hereinafter
be
referred
to
as
the
'Commission Act'. The object of this Act
was to establish Secondary Education
Services Commission and Selection Board
for the selection of teachers in the
institution recognised under the Education
Act. Section 21 of the Act provides for
restriction
on
dismissal
removal
or
reduction in rank of teachers. Section 21
provides that no teacher specified in the
schedule shall be dismissed or removed
from service or reduced in rank and neither
his emoluments may be reduced nor he
may be given notice of removal from
service by the Management unless prior
approval of the Commission has been
obtained. Section 21 came into force with
effect from January 1, 1984 by notification
issued by the State Government on 27th
December, 1983. The resultant effect was
that on or after 1st January, 1984 if any
action of dismissal, removal or reduction in
rank of teacher, Head master or Principal is
taken then such action can only be taken
after obtaining prior approval of the
Commission
in
accordance
with
the
Scheme of the Education Act, Regulations
framed thereunder and the Commission
Act. The action for dismissal, removal or
reduction in rank against a teacher,
Headmaster or Principal can only be taken
in the manner prescribed viz. holding an
enquiry under Regulation 35 and thereafter
following the procedure as required in
Regulations 36 and 37 and subsequent
thereto taking prior approval of the
Commission. If any of the steps which are
condition precedent for taking action are
not followed, the action in our opinion
would be vitiated in law and would be void.
Section 21(3) of the Commission Act also
specifically provides that after the order of
dismissal, removal or reduction in rank of
removal from service or reduction in
emoluments of a teacher in contravention
of the provisions of sub-section (1) or subsection (2) shall be void."

25. There being nothing to show that
the
punishment
of
withholding
two
increments,
if
at all
there be any
punishment validly imposed, was inflicted
with the prior approval of the Board, under
the Act of 1982, would vitiate the order
directing withholding of the petitioner's
increments, in any case. Though, this
question, as already noticed, does not arise
in the present case, because there is indeed
no
order
of
punishment
passed
in
accordance with Chapter III of Regulations,
the validity of the order passed by the
Management and upheld by the District
Inspector of Schools, directing withholding
of increments, has been examined on all
possible scores. It must be recorded that the
learned Counsel for the parties elaborately
addressed this Court on this point. Hence,
these remarks.

26. This Court is, therefore, of
opinion that the order withholding the
petitioner's
increments
cannot
be
countenanced at all.

27. The next facet of the petitioner's
grievance is that he has been denied his
promotion pay scale in the L.T. Grade that
fell due w.e.f. 01.02.2010. The said denial
9 All. Surendra Kumar Gupta Vs. State of U.P. & Ors.
231
has come in the wake of the petitioner
being
involved
allegedly
in
aiding
candidates using unfair means during the
High School and Intermediate Education
Board Examination, 2009, where he was
functioning as the Centre Superintendent.
The aforesaid misdemeanour attributed to
the petitioner led to the registration of Case
Crime No.209 of 2009, under Section 3/10
of the Act of 1998 against him and a charge
sheet being filed in Court. The petitioner is
facing trial in the said case. No disciplinary
proceedings have been initiated against the
petitioner on the basis of the aforesaid
misconduct.
He
was
placed
under
suspension, though as said earlier, it is not
clear if the suspension was pending
investigation,
trial
or
disciplinary
proceedings. Certainly, no disciplinary
proceedings were initiated against the
petitioner, but the criminal case is pending.
He has been reinstated in service subject to
certain conditions, one of which about
infliction of the penalty or withholding two
increments, has been found invalid by this
Court in terms of the findings recorded
hereinabove.

28. Now, there could be two sources
to deny the petitioner's promotion pay
scale. One is the award of adverse entries in
his Annual Confidential Report (for short,
'the A.C.R.') and the other could be just the
fact that a criminal case is pending against
him in the Court, where judgment is still
awaited. The objection to the latter limb of
the obstacle to the grant of promotion pay
scale, is based upon the principle that so
long as a person is facing disciplinary
proceedings, i.e., post the issue of a
departmental charge-sheet or a criminal
case, subsequent to filing of a charge-sheet
in the Criminal Court, he/ she is not to be
denied consideration for promotion or the
grant of selection grade, crossing the
efficiency bar or award of a higher scale of
pay, but implementation of the decision is
to be postponed until the outcome of the
disciplinary proceedings or the criminal
case, as the case may be. In case of
promotion, properly so called 'sealed cover
procedure' is to be adopted, but not a denial
of consideration for promotion.

29. Before this Court, the award of
promotion pay scale was resisted by the
respondents taking up a plea that the
petitioner is not entitled, because his
services were not satisfactory, during the
relevant period of time. This submission
came forth on behalf of the State through
the supplementary counter affidavit dated
14.09.2021 filed on behalf of the District
Inspector of Schools, Bareilly. In the said
affidavit, a photostat copy the petitioner's
service-book was annexed, and it was
averred that under a Government Order
dated 20.12.2001, a copy whereof is
annexed to the supplementary counter
affidavit under reference as Annexure No.
SCA-1, the grant of selection grade and
promotion pay scale to teachers working in
secondary institutions depends upon 12
years of satisfactory service in the selection
grade. Though not much is said in the
affidavit itself about the petitioner's service
record, the relevant ACR entries in the
photostat copy of the service-book were
brought to the Court's notice by Mr.
Upadhyay, learned State Law Officer and
Mr. Arun Kumar Gupta, learned Counsel
appearing on behalf of respondent Nos. 6
and 7 to submit that the petitioner's service
record has not been satisfactory.

30. The learned Counsel for the
respondents have drawn the attention of the
Court to the character roll of the petitioner
and the adverse entries awarded to him for
the years 2000-01, 2001-02, 2002-03 and
232 INDIAN LAW REPORTS ALLAHABAD SERIES
2003-04. A reading of the character roll for
the aforesaid years do show that the
petitioner was awarded adverse entries.
Learned Counsel for the respondents
submits that it was for these service entries
that the petitioner's services for the period
of 12 years in the selection grade were not
found satisfactory, so as to entitle him to
award of promotion pay scale.

31. The learned Counsel for the
petitioner has submitted that this contention
of the respondents was the outcome of
mala fides on the Management's part. The
relevant entries in the service record that
the Xerox copy of the service-book
showed, were never communicated to him,
as required by Regulation 72 of Chapter III
of the Regulations framed under the Act of
1921. He submits that if the entries had
been communicated, he would have made a
representation against the relevant entries
in his character roll to the Committee of
Management. It is argued that since these
entries were not communicated, they
cannot be relied upon to hold that the
petitioner's services were not satisfactory
during the entire period of 12 years while
functioning in the selection grade. It was
further pointed out by the learned Counsel
for the petitioner, during the course of
hearing, that the service-book, a xerox copy
whereof was annexed to the supplementary
counter affidavit filed on behalf of the
District Inspector of Schools, was a
duplicate copy, as appeared from its face. It
was not his original service-book. The
Management has deliberately removed his
original service-book and substituted it by a
duplicate and interpolated entries in his
character roll, adverse to him.

32. It was, particularly, pointed out
that the adverse entries were not there up to
the year 1999-00, but suddenly appeared in
the
year
2000-01.
The
respondent
Management
had
not
obtained
the
petitioner's signatures of acknowledgement
on the relative adverse entries in his
character roll, as required by Regulation
72. This clearly proved that the servicebook was an interpolated document and the
adverse entries made there, apart from
being fabricated, were never communicated
to the petitioner. In the circumstances, this
Court summoned the petitioner's original
service-book vide order dated 25.08.2021.
It was after some adjournment that the
service-book was produced before the
Court on 14.09.2021 by Mr. Sharad
Chandra Upadhyay, learned State Law
Officer. It was retained in a sealed cover
and ordered to be kept in the safe custody
of the Registrar General. During the
hearing, the petitioner's service-book has
been produced in Court and perused,
opening the sealed cover.

33. At the hearing, the learned
Counsel for the petitioner pointed out that
the service-book was duplicate and not the
original, when it was opened on 30.09.2021
and the parties inspected it on the said day.
The Court also found that it was indeed
duplicate. This Court then directed the
State to produce the original service-book,
duplicate whereof had been produced. The
District Inspector of Schools was required
to file his personal affidavit, indicating why
a
duplicate
service-book
has
been
produced. The duplicate service-book that
was produced before the Court was
inspected by the Court and indeed in the
confidential roll up to the year 1999-00,
there are no entries; neither adverse nor
favourable to the petitioner. However, for
the years 2000-01, 2001-02, 2002-03,
2003-04 and 2004-05, there are stringing
adverse entries, but none appears to be
communicated. There are no signatures of
9 All. Surendra Kumar Gupta Vs. State of U.P. & Ors.
233
acknowledgement by the petitioner in
accordance with the mandate of Regulation
72 of the Regulations framed under
Chapter III.

34. In compliance with the Court's
order
dated
30.09.2021,
the
District
Inspector of Schools filed his personal
affidavit dated 07.10.2021. This Court must
remark that the personal affidavit of the
District Inspector of Schools, Dr. Amar
Kant Singh, is a candid disclosure of all
relevant facts. It has been explained there,
on the basis of information received from
Dr. Saudan Singh Shakya, the Principal of
the institution, that after being transferred
and taking over the Krishak Samaj Inter
College,
Ghughli,
Tabibpur,
District
Bijnore, he found that the institution had a
duplicate service-book of the petitioner
alone. The said book was handed over to
the District Inspector of Schools for
production before this Court. Upon inquiry
by the District Inspector of Schools as to
why a duplicate service-book alone was
available, it was brought to his notice that
the first page of the duplicate service-book
had been signed by the then Manager,
Dushyant Kumar, the Principal, Ayodhya
Lal and the petitioner. The petitioner did
not deny his signatures on the first page of
the service-book. It was also pointed out
that the entries on the first page of the
duplicate service-book were made in the
petitioner's
handwriting.
The
District
Inspector of Schools asserted that the
petitioner was fully aware about the
circumstances attending the preparation of
a duplicate service-book. It is then said
further in his affidavit that the petitioner's
service-book, along with that of four other
employees, was lost. An FIR in this regard
was lodged by the then Clerk, the late Tek
Chand on 20.11.1998 at P.S. Hafijganj,
Nawabganj, District Bareilly. It was,
thereafter, that the duplicate service-book
was constructed under the directions of the
then Manager, Dushyant Kumar Gangwar.
A copy of the written information given to
the S.O., P.S. Hafijganj, Bareilly by the
Institution's Clerk is annexed as Annexure
No.3 to the District Inspector of Schools'
personal affidavit.

35. It, thus, appears that the duplicate
service-book that has been constructed is well
within the petitioner's knowledge. It was not
seriously disputed before this Court that the
entries on the first page of the service-book
were signed by the petitioner or in his hand.
There are fingerprints of the petitioner too on
the second page, attested by the then
Principal on 23.11.1998. Still, what baffles
one is that if the duplicate service-book was
reconstructed in the year 1998, as the
information to the Police also would
corroborate, what would be the material on
the basis of which entries in the service-book
were made for the period 01.02.1973 to
31.03.1998. It is no matter of surprise that the
service-book does not carry any remarks for
the
period
01.02.1973
to
31.03.1998.
Possibly, there was no material left with the
institution to post those entries in the servicebook,
after
the
original
was
lost.
Nevertheless, it is true that there is no adverse
entry against the petitioner for the period
01.04.1998 to 31.03.1999 and 01.04.1999 to
31.03.2000. In fact, there is no entry of any
kind for the said period. These two years
relate to the period of time when the current
duplicate service-book was in use. It is only
for the period 01.04.2000 to 31.03.2001, and
thereafter, that adverse entries have suddenly
cropped up. As said earlier, none of these
entries have been got acknowledged by the
petitioner.

36. The position of the law that
uncommunicated service entries cannot be
234 INDIAN LAW REPORTS ALLAHABAD SERIES
made the basis of denying promotion or
promotion pay scale would be dealt with a
little later.

37. At this stage, it is of the prime
importance to notice the stand of the
District Inspector of Schools about the
adverse entries awarded to the petitioner
during the years 2001-02, 2002-03, 200304 and 2004-05. The stand of the District
Inspector of Schools in this regard is
disclosed in Paragraph Nos. 17 and 18 of
his personal affidavit dated 07.10.2021.
The said paragraphs read:

17. That bare perusal of the
duplicate service book of the petitioner it
clearly transpires that uptill 2000 there was
no any adverse entry against him and in the
year 2001-02, 2002-03, 2003-04, 2004-05
adverse remarks were made against the
service of the petitioner as the same was
not found satisfactory and even his
integrity was also found doubtful as such
warning
as
well
as
adverse
entry,
withholding of increment as well as
deduction from salary, such type of orders
were found but there was not a single
whisper about this respect that whether
prior to awarding the aforesaid punishment
due procedure was followed or not and
even the petitioner was whether provided
opportunity of hearing or not and bare
perusal of the said orders it clearly
transpires that the then manager and
Principal done the alleged proceedings
against the petitioner without following any
procedure with ill intention as such the said
entries are itself void and on the basis of
the same no benefit of the petitioner can be
stopped on the basis of said illegal entries.

18. That bare perusal of the
aforesaid service book it also clearly
transpires that vide order dated 29.03.2009
a decision was taken by the respondent No.
6 to suspend the petitioners and the
approval of the same was also alleged to be
granted by the then D.I.O.S. on 26.05.2009
and later on vide final order dated
28.05.2010 passed by the respondent no.