# Surjeet Singh v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 510
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-30
- **Case number:** Writ A No. 17100 of 2022
- **Bench:** Piyush Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surjeet-singh-v-state-of-u-p-ors-52135
- **Pages:** 5

## Headnote

A. Service Law - Termination from Service
- Post of Assistant Teacher - Complaint of
mentioning 324 marks out of 600, though
he has secured only 316 marks, was made
- Petitioner added eight marks awarded to
him as grace marks in Math - During
selection, the petitioner was at Serial no.
1673 in merit list as he obtained 64.23%
marks and even if eight grace marks are
removed,
the
petitioner's
percentage
comes to 64.09 - Next selected person at
Serial No. 1674 obtained 63.93 % marks -
Effect - Held, the petitioner does not gain
any advantage as well as in this matter, the
candidate who is at Serial No. 1674 is not
put to any disadvantage position because
she has got 63.93 percentage - High Court
quashed the impugned order and issued
mandamus permitting the petitioner to
discharge his services and paying him
salary month to month forthwith. (Para 14,
15, 18 and 20)

Writ petition allowed. (E-1)

List of Cases cited:

## Text

510 INDIAN LAW REPORTS ALLAHABAD SERIES
appointed prior to the framing of Rules of
2016 provided they are working on the date
of enforcement of the Rules of 2016. These
rules, therefore, would have no applicability
upon the case of the petitioner who was
appointed in the year 1970 and had retired in
the year 2011 i.e. prior to the introduction of
Rules of 2016."

38. A reading of the entire Scheme
and Rules of 2016, including Rule 1(2), Rule
5 and Rule 5(d), lead to the inescapable
conclusion, apart from what has been said
above that these Rules have no retrospective
operation. These would never apply or enure
to the benefit of an employee, who has
retired from service before the date of
enforcement of the Rules of 2016. The other
question, therefore, involved in this petition
is also decided against the petitioner.

39. In this view of the matter, there
is no force in this petition. It fails and is
dismissed.

40. There shall be no order as to
costs.
----------
(2024) 5 ILRA 510
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2024

BEFORE

THE HON'BLE PIYUSH AGRAWAL, J.

Writ A No. 17100 of 2022

Surjeet Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Siddharth Khare

Counsel for the Respondents:
Archana Singh, C.S.C.

A. Service Law - Termination from Service
- Post of Assistant Teacher - Complaint of
mentioning 324 marks out of 600, though
he has secured only 316 marks, was made
- Petitioner added eight marks awarded to
him as grace marks in Math - During
selection, the petitioner was at Serial no.
1673 in merit list as he obtained 64.23%
marks and even if eight grace marks are
removed,
the
petitioner's
percentage
comes to 64.09 - Next selected person at
Serial No. 1674 obtained 63.93 % marks -
Effect - Held, the petitioner does not gain
any advantage as well as in this matter, the
candidate who is at Serial No. 1674 is not
put to any disadvantage position because
she has got 63.93 percentage - High Court
quashed the impugned order and issued
mandamus permitting the petitioner to
discharge his services and paying him
salary month to month forthwith. (Para 14,
15, 18 and 20)

Writ petition allowed. (E-1)

List of Cases cited:

1. Special Appeal No. 69 of 2022; Secy. Basic
Edu. Board, Prayagraj & ors.(In Writ A No. 17495
of 2021) Vs Jubeda Bano decided on 08.03.2022

2. Writ Petition (Civil) No. 322 of 2021; Jyoti
Yadav and Anr. Vs The St. of Uttar Pradesh & ors.
decided on 08.04.2021

3. Special Appeal No. 153 of 2022; Secretary Basic
Education Board & anr. Vs Pratibha Mishra & ors.

4. Special Appeal Defective No. 551 of 2021; The
Basic Education Board U.P. Vs Manisha Singh and
2 Others decided on 09.08.2021

5. Sushil Kumar Vs St. of U.P. & ors.; 2021 (8) ADJ 210

(Delivered by Hon'ble Piyush Agrawal, J.)

1. Heard Sri Siddharth Khare, learned
counsel for the petitioner and Ms. Archana
Singh, learned counsel for the respondents.
5 All. Surjeet Singh Vs. State of U.P. & Ors.
511
2. By means of this writ petition, the
following prayer has been made:-

 "(i) Issue a writ, order or
direction in the nature of certiorari and
quash the orders dated 14.09.2022 passed
by District Basic Education Officer, District
Badaun (Annexure No. 15) in interest of
justice.

(ii) Issue a suitable order or
direction in nature of mandamus and
directing to respondents to allow to
petitioner for work of the post of Assistant
Teacher and pay salary month to month
from due date without any interruption in
interest of justice according to law.

(iii) ................"

3. Brief facts of the case are that the
State Government invited application for
filling up 69,000/- post of Assistant
Teachers in Primary Schools by publishing
advertisement. In pursuance thereof, the
petitioner, having requisite qualification,
applied for the same. In the said application,
he has specifically mentioned the obtained
number in academic and training alongwith
High School Marks as 324/600. Thereafter,
the petitioner appeared in the written
examination held on 06.01.2019 and the
petitioner has been declared successful by
obtaining 64.23 per cent. Further, on
04.12.2020, the appointment letter was
issued to the petitioner for the post of
Assistant Teacher. In pursuance thereof,
petitioner joined his services on 01.02.2021
in the institution allotted to him. Thereafter,
some complaint was made against the
petitioner and consequent thereof, notice
was issued to the petitioner to which the
petitioner
submitted
reply
specifically
stating therein that in the High School
Marks, against the Mathematics, grace mark
was given and since the petitioner was not
aware as to grace marks that the same will
not be added in total score. Thereafter, on
14.09.2022, the services of the petitioner has
been terminated. Hence the present petition.

4. Learned counsel for the
petitioner has submitted that the petitioner
has mentioned the total marks in the
application including the grace marks,
which is in total 324/600 and if the grace
marks i.e. 8 is subtracted, then it comes to
316 out of 600. He further submits that in the
selection list, the petitioner has been shown
at Serial No. 1673, where the percentage of
obtained marks is mentioned as 64.23. He
next submits that if the grace marks is
reduced, then total percentage comes to
64.093. He further submits that since the
person next to the petitioner, who is at Serial
No 1674 and whose marks is 63.93 per cent,
therefore, the merit list as a whole will not
change.

5. In support of his submission,
counsel for the petitioner has placed reliance
upon
two
Government
Orders
dated
04.12.2020 & 05.03.2021. He refers Clauses
2 & 3 of Point No.2 of G.O. dated
04.12.2020 and submits that the intent of
Government is very clear that if the aspirants
have filled the higher marks than the
obtained marks incorrectly, which does not
affect the merit list, then the selection of
such candidate will not be cancelled. He
further refers Clause Nos. 2 to 4 of the
Government Order dated 05.03.2021 and
submits that the intent of the Government is
very clear where the merit list in either of the
cases i.e. mentioning the lower numbers or
the higher numbers, if the merit is not
changed and if the same is changed, after
obtaining affidavit, no future claim will be
made by the candidate.

6. He next refers Clause 2 (1) of
G.O. dated 05.03.2021, which also clarifies
512 INDIAN LAW REPORTS ALLAHABAD SERIES
the said decision specifically satisfy that
where the candidate, if without any basis has
mentioned higher marks than obtained
marks, the selection of such candidate may
be cancelled. He submits that in the case in
hand, there is a reason for mentioning higher
marks awarded to the petitioner, therefore,
the total sum was mentioned as 324
(including eight grace marks) instead of 316.
He further submits that this fact is also not
clear to the District Basic Education Officer.
He further submits that in the advertisement,
it was not clear that with which regard, total
sum is to be mentioned that is deducting the
grace marks. In support of his contention, he
refers letter dated 13.07.2021 issued by
District Basic Education Officer to higher
authority, a copy of which has been annexed
as Annexure No.7 , where the BSA has
sought guidelines how to deal with the
situation where the total sum has been
mentioned including grace marks. Counsel
for the petitioner further submits that the
mistake is bona-fide as the grace marks was
included in the total sum on the basis of
material on record and not otherwise, which
can be ignored in view of the Government
Order dated 05.03.2021, therefore, the
appointment of the petitioner should not be
cancelled.

7. In support of his submission, he
further placed reliance upon the judgment of
Division Bench of this Court passed in the
case of Secy. Basid Edu. Boar, Prayagraj
and Others (In Writ-A No.17495 of 2021)
Vs. Jubeda Bano (Special Appeal No. 69 of
2022), decided on 08.03.2022 in which the
Government Orders dated 04.12.2020 and
05.03.2021
have
specifically
been
considered holding that no grace marks shall
be permitted in the OnLine application to
avoid any alteration or change in the inter-se
merit list of the candidates or to alter/change
in the final merit list.
8. Per contra, learned counsel for
the
respondents
submits
that
the
Government order dated 05.03.2021 is
absolutely clear, which empowers to the
candidates, who has wrongly mentioned the
marks OnLine, the appointment can be
cancelled. She further submits that the said
government order was not only considered
by the Division Bench of this Court but also
by the Hon'ble Apex Court. He placed
reliance upon the recent judgment of the
Hon'ble Apex Court passed in the case of
Jyoti Yadav and Anr. Vs. The State of Uttar
Pradesh & Ors., [Writ Petition (Civil) No.
322 of 2021], decided on 08.04.2021 in
which the candidature of the petitioner has
been rejected, considering the said G.O.
dated 05.03.2021 by holding that the G.O.
dated 05.03.2021was designed to achieve a
purpose
of
securing
fairness
while
maintaining the integrity of the entire
process. She further placed reliance upon the
judgment of Division Bench of this Court
passed in Special Appeal No. 153 of 2022
(Secretary Basic Education Board and
Another Vs. Pratibha Mishra & Ors.) by
submitting that the candidate got one grace
mark, which was mentioned by the appellant
therein, has turned down the candidature of
the appellant therein.

9. She further placed reliance upon
the judgment of Special Appeal Defective
No. 551 of 2021 (The Basic Education
Board U.P. Vs. Manisha Singh and 2
Others), decided on 09.08.2021, where the
appellant was not non-suited because of
mentioning wrong marks. Similarly, she has
relied upon the judgment of this Court
passed in the case of Sushil Kumar Vs. State
of U.P. and Ors., 2021 (8) ADJ 210, where
the Court has taken the view that the grace
marks should not have included in the total
marks, and therefore, turned down prayer
made therein.
5 All. Surjeet Singh Vs. State of U.P. & Ors.
513
10. Counsel for the respondents
summarises
his
submission
while
submitting that admittedly, the petitioner
has secured only 316 marks and not 324 out
of 600, therefore, by the impugned order, his
appointment has rightly been cancelled.

11.

Rebutting
to
the
said
submission
of
the
counsel
for
the
respondents, Shri Khare, submits that the
judgments cited by the learned counsel for
the respondents are not applicable to the
facts of the case. He submits that even
assuming without admitting the marks have
wrongly been mentioned, but if the eight
grace marks are reduced, the percentage
comes to 64.093 and the candidate, who is
just below the petitioner i.e. at Serial No.
1674 has obtained 63.93, therefore, the merit
list of the selected candidate will not be
changed, this fact has neither been argued in
any of the cited judgments by counsel for the
respondents nor considered. The petitioner
has neither got advantages nor any other
candidate was put to disadvantages position.

12. After hearing the parties, the
Court has perused the records.

13. It is not in dispute that the
petitioner secured 316 marks out of 600
marks and while filling the OnLine
application, has mentioned 324 out of 600,
by adding eight marks, which was awarded
to the petitioner as grace marks in the
Mathematics subject.

14. The merit list, which has been
brought on record as Annexure No.2 to the
present writ petition, wherein the petitioner
has been shows at Serial No. 1673 and
obtained 64.23. Further, the next person has
been shown at Serial No. 1674 who has
obtained 63.93 per cent marks. Furthermore,
even if eight grace marks are removed, the
petitioner's percentage comes to 64.093 and
admittedly, even if said percentage i.e.
64.093 is taken to be correct.

15. The petitioner does not gain any
advantage as well as in this matter, the
candidate who is at Serial No. 1674 is not
put to any disadvantage position because she
has got 63.93 percentage. In other words, the
petitioner does not gain any advantage of
mentioning the grace marks and putting the
candidate next to him in disadvantage
position.

16. The Hon'ble Apex Court as
well as Division Bench of this Court has
considered the government order dated
05.03.2021 in the above-quoted judgments,
in which it has categorically been affirmed
that the said government order has been
issued so that the process of selection of
appointment will not be disturbed. The
circular further provides that by any reason,
if the marks has wrongly been mentioned,
the candidature would be cancelled, but in
the case in hand, since eight grace marks
have been mentioned by the petitioner
though he secured only 316 marks out of
600, and even after deducting eight grace
marks, the merit list does not affect as
mentioned above as the selected candidate
next to the petitioner secured much less
percentage
i.e.
63.93;
whereas
after
deducting eight grace marks it comes to
64.093, therefore, it can happily be said that
the petitioner has not put any candidate at
disadvantage position by mentioning eight
grace marks along with actual marks.

17. Further, in the judgments cited
by the counsel for the respondents, nowhere,
it has been considered the aspect of the fact,
but by reducing the grace marks, the interse merit list was not disturbed. Therefore,
the judgments cited by the counsel for the
514 INDIAN LAW REPORTS ALLAHABAD SERIES
respondents do not do any aid to her in a
peculiar facts and circumstances mentioned
here-in-above.

18. In view of the facts as stated
above, the impugned order dated 14.09.2022
cannot sustain in the eye of law and the same
is hereby quashed.

19. The writ petition is allowed,
accordingly.

20. A mandamus is issued to the
authority concerned to permit the petitioner
to discharge his services on the post of
Assistant Teacher and salary shall be paid to
him month to month forthwith. A mandamus
is also issued to authority concerned to give
all consequential benefits to the petitioner.
----------
(2024) 5 ILRA 514
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2024

BEFORE

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

Writ A No. 17113 of 2023

Puran Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Mr. Sanjeev Singh, Advocate, Mr. Pramod
Kumar Srivastava, Advocate

Counsel for the Respondents:
Mr. Mahesh Chandra Chaturvedi, Additional
Advocate General with Mr. Suresh Singh,
Additional Chief Standing Counsel for
respondents Nos. 1 and 2 Mr. Suresh C.
Dwivedi, Advocate for respondents Nos. 3
and 4

A. Service Law - UP Government Servant
(Discipline and Appeal) Rules, 1999 - Rule
7 - Disciplinary proceeding - Punishment -
Censure and withholding of two increment
- Charges may likely to lead major
punishment - No date, time and place was
fixed for oral inquiry - Witnesses of
establishment
could
not
be
crossexamined
-
Effect
-
Held,
in
any
disciplinary matter involving the possible
imposition of a major penalty, it is
imperative for the Establishment to prove
the charges by leading before the Inquiry
Officer evidence, both documentary and
oral - High Court set aside the impugned
punishment
order
giving
liberty
to
Disciplinary Authority to proceed with
enquiry afresh, but with condition that he
cannot impose higher punishment than
that was awarded by the impugned order.
(Para 18, 19 and 23)

B. Service Law - Disciplinary proceeding -
Role of Inquiry Officer - The Inquiry Officer
cannot
identify
himself
with
the
Establishment and assume the charges to
be proof of themselves - He must require
the Establishment to come forth and
produce evidence through a Presenting
Officer, both documentary and oral, to
prove the charges. It is also imperative that
in
cases
of
possible
major
penalty,
witnesses ought to be examined. After the
Presenting
Officer
leads
evidence,
introducing documents and proving them
through appropriate witnesses, which, in
certain cases, can be the Presenting Officer
himself,
the
witnesses
for
the
Establishment have to be offered for crossexamination
to
the
chargesheeted
employee. It is after the evidence of the
Establishment is over that the chargesheeted
employee
has
to
be
given
opportunity to lead his evidence, which,
again, can be both documentary and oral.
If the chargesheeted employee leads oral
evidence,
that
is
to
say,
produces
witnesses, his witnesses can be crossexamined by the Establishment. (Para 20
and 21)

Writ petition allowed. (E-1)