# Suresh Kumar v. State of U.P. and others

- **Citation:** (2012) 3 ILRA 1564
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-12-04
- **Case number:** Civil Misc. Writ Petition No. 7971 of 2011
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-kumar-v-state-of-u-p-and-others-42367
- **Pages:** 3

## Headnote

Constitution
of
India,
Article
226Dismissal of Service-petitioner appointed
as
Constable
under
Sports
Quotarequired
to
show
cause
regarding
dispense with of services as future
performance
under
sports
not
upto
mark-from
progress
report-regular
improvement
noted-ground
for
dismissal-held
patently
illegalappointment not based upon better
performance in future-even after expiry
of probation period-no further extension
of probation-unsatisfactory performance
in sports-can not be taken into account.

Held: Para-7

There is another aspect. A person is
appointed under a sports quota on the
basis of his past performance in the area
of his excellence in a particular field of
sports. The appointment is given not for
the reason that he would perform better
in future pursuant to his appointment.
The appointment is not based on the
condition that he would perform better
in future. The Court further finds that
3 All] Suresh Kumar V. State of U.P. and others
1565
Clause 9 of the G.O. dated 02.01.1999
clearly stipulates that the probation
period can be extended twice after the
expiry of two years of the probation
period in the event the performance was
not found satisfactory. Nothing has come
on the record to indicate that the
petitioner's
probation
was
extended
after the expiry of two years on the
ground of unsatisfactory performance.
Consequently, after the expiry of two
years and, in absence of any extension of
the
probation
period,
unsatisfactory
performance
cannot
be
taken
into
consideration, nor Clause 9 of the G.O.
dated 02.01.1999 could be invoked.

## Text

1564 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
subsistence allowance and other allowances
that would otherwise be admissible to him;
where the subsistence and other allowances
admissible to him are equal to or less that
the amount earned by him, nothing in this
proviso shall apply to him.

8. The aforesaid Rule provides, that
where a Government Servant is placed
under suspension, he shall be entitled to a
subsistence allowance. The word ''shall' is
mandatory and it is not directory and is not
dependent on the whims and fancies of the
appointing authority. Suspension is not a
punishment and a government employee is
entitled to survive during the period when
he was under suspension, otherwise it
would be in violation of Article 21 of the
Constitution
of
India.
Whenever
a
disciplinary
authority
suspends
an
employee, it is the bounden duty of the
disciplinary authority to pay suspension
allowance
and
non-payment
of
the
suspension allowance would be in violation
of the fundamental rights of the petitioner to
live with dignity as provided under Article
21 of the Constitution of India.

9. Mere pendency of a criminal case
does not entitle the disciplinary authority
not to release the suspension allowance. The
discretion
can
be
exercised
by
the
disciplinary authority with regard to the
balance payment of the salary, but no
discretion can be exercised for payment of
the suspension allowance.

10. In the light of the aforesaid, the
impugned order cannot be sustained and is
quashed. The writ petition is allowed and a
writ of mandamus is issued commanding
the competent authority to release the
suspension allowance for the period when
the petitioner was under suspension, as per
the provision of Rule 53 of the Fundamental
Rules, within 8 weeks from the date of the
production of a certified copy of this order.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.12.2012

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 7971 of 2011

Suresh Kumar

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

Counsel for the Petitioner:
Sri Munesh Kumar Sharma
Sri V.K. Singh
Sri G.K. Singh

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Article
226Dismissal of Service-petitioner appointed
as
Constable
under
Sports
Quotarequired
to
show
cause
regarding
dispense with of services as future
performance
under
sports
not
upto
mark-from
progress
report-regular
improvement
noted-ground
for
dismissal-held
patently
illegalappointment not based upon better
performance in future-even after expiry
of probation period-no further extension
of probation-unsatisfactory performance
in sports-can not be taken into account.

Held: Para-7

There is another aspect. A person is
appointed under a sports quota on the
basis of his past performance in the area
of his excellence in a particular field of
sports. The appointment is given not for
the reason that he would perform better
in future pursuant to his appointment.
The appointment is not based on the
condition that he would perform better
in future. The Court further finds that
3 All] Suresh Kumar V. State of U.P. and others
1565
Clause 9 of the G.O. dated 02.01.1999
clearly stipulates that the probation
period can be extended twice after the
expiry of two years of the probation
period in the event the performance was
not found satisfactory. Nothing has come
on the record to indicate that the
petitioner's
probation
was
extended
after the expiry of two years on the
ground of unsatisfactory performance.
Consequently, after the expiry of two
years and, in absence of any extension of
the
probation
period,
unsatisfactory
performance
cannot
be
taken
into
consideration, nor Clause 9 of the G.O.
dated 02.01.1999 could be invoked.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. The petitioner was appointed as a
Constable under a sports quota pursuant to
the G.O. dated 02.01.1999 which permitted
certain
relaxation
in
the
Rules
for
appointment of constables under the sports
quota. The petitioner, being athletic, and
having a medal in high jump applied for the
post of the constable and was selected and
was given an appointment on 17.03.2006.
On 14th May, 2010, after more than four
years, the petitioner was issued a notice to
show cause as to why his service should not
be dispensed with since he was not
performing up to the mark under the sports
category.

2. The petitioner submitted his reply
denying the charge levelled against him. The
respondent no.4 passed an order dated
24.1.2011 dispensing the services of the
petitioner. The petitioner being aggrieved by
the order dated 24.1.2011, has filed the
present writ petition.

3. Clause 9 of G.O. dated 02.01.1999
stipulates that a person appointed as a
Constable under the sports quota would be
kept under probation for a period of two
years which can be extended twice in the
event the incumbent does not improve his
skill in the sports category.

4. In the light of this G.O., the
impugned notice was given and thereafter he
was discharged.

5. Having heard the learned counsel for
the parties, the Court finds from a perusal of
the impugned notice dated 14th May, 2010,
that the performance of the petitioner had
increased in the year 2009. The petitioner
had jumped 1.80 meters in the year 2009
whereas he jumped 1.88 meters in the year
2010. The petitioner recorded 2.52.86
minutes for 800 meters in the year 2009
whereas he recorded 2.45.81 minutes in the
year 2010. The petitioner's performance in
sprint, however, went down from 7.23
seconds in 2009 to 7.46 seconds in 2010.

6. In the light of the aforesaid facts
depicted in the show cause notice, the Court
finds that the impugned order discharging the
service on the ground that his performance
was not up to the mark appears to the
patently erroneous.

7. There is another aspect. A person is
appointed under a sports quota on the basis
of his past performance in the area of his
excellence in a particular field of sports. The
appointment is given not for the reason that
he would perform better in future pursuant to
his appointment. The appointment is not
based on the condition that he would perform
better in future. The Court further finds that
Clause 9 of the G.O. dated 02.01.1999
clearly stipulates that the probation period
can be extended twice after the expiry of two
years of the probation period in the event the
performance was not found satisfactory.
Nothing has come on the record to indicate
that the petitioner's probation was extended
1566 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
after the expiry of two years on the ground of
unsatisfactory performance. Consequently,
after the expiry of two years and, in absence
of any extension of the probation period,
unsatisfactory performance cannot be taken
into consideration, nor Clause 9 of the G.O.
dated 02.01.1999 could be invoked.

8. In the light of the aforesaid, the
impugned order could not be sustained and is
quashed. The writ petition is allowed and a
writ of mandamus is issued commanding the
respondents to permit the petitioner to
continue in service. Since the petitioner has
not worked for this period he will not be
entitled for any salary but this period would
be included in the length of service.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.11.2012

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE ABHINAVA UPADHYA, J.

Civil Misc. Writ Petition No. 8068 of 2006

Syed Hasan, Ist Addl. Civil Judge (Sr.
Division), Varanasi

 ...Petitioner
Versus
High Court Of Judicature And Another

 ...Respondents

Counsel for the Petitioner:
Sri Uday Pratap Singh
Sri Anil Tiwari
Sri Shailendra
Sri Vijay Bahadur Singh

Counsel for the Respondents:
Si Uday Pratap Singh
Sri Anil Tiwari
Sri Shailendra
Sri Vijay Bahadur Singh

Constitution
of
India,
Article
226punishment-reduction
in
rank-on
ground-while
acting
Session
Judge
granted
second
bail
on
extraneous
considerations-enquiry officer not found
the charge proved-punishment on basis
of
extraneous
considerations-without
giving
details-held
punishmentunsustainable.

Held: Para-37

From the above discussions, we are of
the view that although the learned
Enquiry Judge held that bail was granted
on account of extraneous consideration
but no extraneous consideration having
either been referred to or proved, the
charge of misconduct against the officer
cannot be said to be proved. Further the
opinion of the learned Enquiry Judge
that substantially on the same ground
first bail application was rejected is also
not a proof of misconduct by Charged
Officer
while
allowing
the
bail
application unless the granting of bail is
referred
to
or
found
out
on
any
extraneous consideration which having
not been proved in the present case, the
charge
of
misconduct
against
the
Charged Officer cannot be held to be
proved.
Case Law discussed:
A.I.R. 1967 SC 1274; (1992) SC 124; (1993) 2
SCC 56; (2001) 6 S.C.C. 491; (2007) 4 SCC
247; A.I.R. 1997 SC 2286; 2006 (5) AWC
4519; 2002 (46) ALR 138

(Delivered by Hon'ble Ashok Bhushan, J.)

1. This writ petition has been filed by
the petitioner, a judicial officer, challenging
an order reducing the petitioner in rank
consequent to disciplinary proceedings
conducted by the High Court.

2. Counter and rejoinder affidavits
have been exchanged between the parties
and with the consent of learned counsel for
the parties, the writ petition is being finally
decided.