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

- **Citation:** (2023) 3 ILRA 136
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-03
- **Case number:** Writ A No. 3979 of 2022
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/uday-singh-ors-v-state-of-u-p-ors-49937
- **Pages:** 8

## Headnote

Law
-
Recruitment/Selection/Appointment
-
Sanjay Gandhi Post Graduate Institute of
Medical Sciences Act, 1983 - The proper
and appropriate remedy in a situation
where enforcement of the right depends
upon the acceptance of a policy of
examination
for
admission
in
any
particular language to the Institution on
that basis, is a matter of policy and cannot
be appropriately dealt with u/Article 32 of
the Constitution. It is difficult to accept
that in not holding entrance examination
3 All. Uday Singh & Ors. Vs. State of U.P. & Ors.
137
in any particular language, be it Hindi or
regional language, amounts to denial of
admission on the ground of language.
Every Educational Institution has right to
determine or set out its method of
education and conditions of examination.
(Para 14)

The CRT was held only in English language.
Therefore, the petitioners have approached this
Court by means of the present writ petition with
a prayer that the CRT should be held in Hindi
language also and after holding the CRT in
Hindi, the result should be declared a fresh.
(Para 9)

B. Uttar Pradesh Competitive Examination
(Medium of Written Examination) Rules,
1994: Rule 4 - Rule 4 provides that a
candidate may answer papers in English in
Roman Script or Hindi in Devanagari script or
Urdu in Persian script except that the language
paper must be answered in the same language;
provided that question paper as a whole, and
not for each question separately, must be
answered in any of the above script; provided
further that the question paper shall be in
English in Roman script and Hindi in Devanagari
Script. Therefore, the rule indicates that it
is not for the multiple choice questions
because in multiple choice questions there
is no requirement of answering the
question paper in any language and it is
also not the case herein. (Para 12)

C. Once the Rules/Regulations have been
framed by the SGPGI with the approval of
the St. Government, the selection is to be
made on the basis of same and GO dates
07.08.1992
is
not
applicable.
This
Government order only indicates the consent of
the
Government
for
applicability
of
the
Rules/Regulations of the St. Government but it
does not indicate that SGPGI, which is an
autonomous body created under the statue, i.e.,
Act 1983, has adopted and applied it. (Para 13)

D. Any condition, which is not provided
under the advertisement cannot be said to
have been violated in such a situation.
When the language of paper was not provided
in the advertisement, it cannot be said that CRT
has been held in violation of the terms and
conditions
of
the
advertisement.
Even
otherwise, when there are 10 marks for English
language, then English would be required for
the post in question and it cannot be accepted
that a candidate who has applied for the post
knowing it well does not know the English
required for multiple choice questions paper.
(Para 11, 16)

E. It was not open to the appellants after
participating in the selection process to
question the result on being declared
unsuccessful. The syllabus of the selection in
question was in English and no objection was
raised by the petitioners and nothing has been
brought on record to show that the petitioners
have ever made any request for providing the
syllabus in Hindi, therefore, it cannot be said
that the petitioners do not know the English
language, which may have been required for
multiple choice questions, particularly when
there are 10 marks for General English. If the
syllabus was in English language then it can
safely be inferred that the question papers
would be in English and if the petitioners have
not raised any objection at that stage, they
cannot say now that the question paper should
have been in Hindi also. (Para 16, 17)

F. Words and Phrases - (i)'Examination'
- The definition clause in Rule 3(b) provides
that the 'Examination' means a written
examination or a competitive examination for
direct recruitment to any post or service
under th

## Text

136 INDIAN LAW REPORTS ALLAHABAD SERIES
person who went on leave, has not come
back since 1997, therefore, the service of
the petitioner is liable to be regularized.
Her last submission is that the long
standing service of the petitioner is liable to
be regularized in view of the said set of
facts and grounds.

8. On the other hand, learned Standing
Counsel for the respondent nos.1 and 2 and
Shri Rajiv Singh Chauhan, learned counsel
for the respondent no.3 submit that the
appointment of the petitioner was made
under Rule 20 for a period of six months,
but due to non-availability of the teacher
who went on leave, the service of the
petitioner
was
extended
and
he
is
continuously discharging his duty. The
vacancy has not become substantive,
therefore, the claim for regularization is not
available to the petitioner.

9. I have considered the submissions
advanced by learned counsel for the
parties and perused the material available
on record.

10. On its perusal, it is evident that
Sri Rajendra Bahadur Singh went on
leave on 17.9.1997. Almost 26 years have
passed and he has not come back to join
the post. Meaning thereby, he is not
interested to come back and join the post.
The
petitioner
is
continuously
discharging his duty on the post of
Assistant Teacher in the vacancy caused
due to leave granted to Sri Rajendra
Bahadur Singh. Time to time approval
has also been accorded by the District
Basic Education Officer for extension of
service of the petitioner. Lastly, vide
order dated 23.6.2002 direction was
issued by the District Basic Education
Officer to permit continuance of the
petitioner till further order passed by him.

11. In view of the above, there is no
justification to keep this writ petition
pending any more.

12. Accordingly, this writ petition is
finally disposed of with a direction to
District Basic Education Officer, Unnao to
pass an order for regularization of service
of the petitioner within a period of six
weeks from the date of production of a
certified copy of this order. However, the
petitioner shall be permitted to continue on
the post of Acting Headmaster and to pay
regular monthly salary month by month.
----------
(2023) 3 ILRA 136
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.03.2023

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Writ A No. 3979 of 2022

Uday Singh & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Avinash Tiwari

Counsel for the Respondents:
C.S.C., Shubham Tripathi

A.
Education/Service
Law
-
Recruitment/Selection/Appointment
-
Sanjay Gandhi Post Graduate Institute of
Medical Sciences Act, 1983 - The proper
and appropriate remedy in a situation
where enforcement of the right depends
upon the acceptance of a policy of
examination
for
admission
in
any
particular language to the Institution on
that basis, is a matter of policy and cannot
be appropriately dealt with u/Article 32 of
the Constitution. It is difficult to accept
that in not holding entrance examination
3 All. Uday Singh & Ors. Vs. State of U.P. & Ors.
137
in any particular language, be it Hindi or
regional language, amounts to denial of
admission on the ground of language.
Every Educational Institution has right to
determine or set out its method of
education and conditions of examination.
(Para 14)

The CRT was held only in English language.
Therefore, the petitioners have approached this
Court by means of the present writ petition with
a prayer that the CRT should be held in Hindi
language also and after holding the CRT in
Hindi, the result should be declared a fresh.
(Para 9)

B. Uttar Pradesh Competitive Examination
(Medium of Written Examination) Rules,
1994: Rule 4 - Rule 4 provides that a
candidate may answer papers in English in
Roman Script or Hindi in Devanagari script or
Urdu in Persian script except that the language
paper must be answered in the same language;
provided that question paper as a whole, and
not for each question separately, must be
answered in any of the above script; provided
further that the question paper shall be in
English in Roman script and Hindi in Devanagari
Script. Therefore, the rule indicates that it
is not for the multiple choice questions
because in multiple choice questions there
is no requirement of answering the
question paper in any language and it is
also not the case herein. (Para 12)

C. Once the Rules/Regulations have been
framed by the SGPGI with the approval of
the St. Government, the selection is to be
made on the basis of same and GO dates
07.08.1992
is
not
applicable.
This
Government order only indicates the consent of
the
Government
for
applicability
of
the
Rules/Regulations of the St. Government but it
does not indicate that SGPGI, which is an
autonomous body created under the statue, i.e.,
Act 1983, has adopted and applied it. (Para 13)

D. Any condition, which is not provided
under the advertisement cannot be said to
have been violated in such a situation.
When the language of paper was not provided
in the advertisement, it cannot be said that CRT
has been held in violation of the terms and
conditions
of
the
advertisement.
Even
otherwise, when there are 10 marks for English
language, then English would be required for
the post in question and it cannot be accepted
that a candidate who has applied for the post
knowing it well does not know the English
required for multiple choice questions paper.
(Para 11, 16)

E. It was not open to the appellants after
participating in the selection process to
question the result on being declared
unsuccessful. The syllabus of the selection in
question was in English and no objection was
raised by the petitioners and nothing has been
brought on record to show that the petitioners
have ever made any request for providing the
syllabus in Hindi, therefore, it cannot be said
that the petitioners do not know the English
language, which may have been required for
multiple choice questions, particularly when
there are 10 marks for General English. If the
syllabus was in English language then it can
safely be inferred that the question papers
would be in English and if the petitioners have
not raised any objection at that stage, they
cannot say now that the question paper should
have been in Hindi also. (Para 16, 17)

F. Words and Phrases - (i)'Examination'
- The definition clause in Rule 3(b) provides
that the 'Examination' means a written
examination or a competitive examination for
direct recruitment to any post or service
under the Rule making power of the
Governor under the proviso to Article 309 of
the Constitution. Therefore, this Rule is
applicable only to the posts or services,
which are under the Rule making power of
the
Governor
u/Article
309
of
the
Constitution, whereas the appointment in the
SGPGI are made under the first statute of
the SGPGI by the Director.

(ii) 'Commission' - Rule 3(e) provides that
the 'Commission' means the Uttar Pradesh
Public Service Commission or Uttar Pradesh
Subordinate Service Selection Commission as
the case may be. It indicates that this Rule is
applicable
on
the
examinations
being
conducted
by
the
said
commissions.
Therefore, it is not applicable on the selection
in question. (Para 12)
138 INDIAN LAW REPORTS ALLAHABAD SERIES
Writ petition dismissed. (E-4)

Precedent followed:

1. Hindi Hitrakshak Samiti & ors. Vs U.O.I. &
ors., (1990) 2 SCC 352 (Para 7)

2. Ashima Dwivedi Vs Registrar General High
Court Judicature at Allahabad & anr., Special
Appeal No. 1572 of 2011 (Para 7)

3. Ashok Kumar & anr. Vs St. of Bihar & ors.,
(2017) 4 SCC 357 (Para 7)

Precedent distinguished:

1. Bedanga Talukdar Vs Saifudullah Khan & ors.,
(2011) 12 SCC 85 (Para 5, 11)

2. Anil Chandra Vs Birbal Sahni Institute of
Palaebotany, 2003 LawSuit (All) 76/2003 21
LCD 396 (Para 5, 11)

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

1. Heard Shri Avinash Tiwari, learned
counsel for the petitioners and Shri Sanjay
Bhasin, learned Senior Advocate assisted
by Shri Shubham Tripathi, learned counsel
for the respondent Nos.2 to 5. Learned
Standing Counsel is present for respondent
No.1.

2. By means of the present writ
petition, the petitioners have prayed for a
direction to conduct online common
recruitment test in Hindi language for
selection in pursuance of the advertisement
dated 06.01.2022 and declare the final
result of the selection only after conducting
Common
Recruitment
Test
in
Hindi
language properly with all consequential
benefits. The petitioners have also prayed
for quashing the procedure of online
Common Recruitment Test conducted on
20.06.2022 or in alternative issue a suitable
direction to the opposite parties not to make
any selection or appointment only in
pursuance of Common Recruitment Test
conducted on 20.06.2022. The petitioners
have also prayed for a direction not to give
effect to the marks obtained in online
Common Recruitment Test conducted on
20.06.2022. The petitioners have also
prayed for similar and consequential
reliefs.

3. The brief facts of the case, for
adjudication of the controversy raised in
this petition, are that an advertisement
dated 06.01.2022 was issued by the
opposite
party
No.3/Director
Sanjay
Gandhi Post Graduate Institute of Medical
Sciences, Lucknow for several posts. The
petitioner Nos.1, 2 & 3 had applied for post
of Sister Grade II, Petitioner Nos.4, 5 & 6
for the post of Medical Lab Technologist
and petitioner No.7 for the post of Junior
Medical Lab Technologist against the said
advertisement. The petitioners, being found
eligible, were called for the online
Common Recruitment Test (hereinafter
referred to as the 'CRT') containing
multiple choice questions of 100 marks.
The CRT was held on 20.06.2022 and the
list of marks obtained by the candidates
was declared on 21.06.2022. After being
unsuccessful in the CRT, the petitioners
approached this Court mainly with the
prayer that CRT may be conducted in Hindi
language and to declare the result on the
basis of same.

4. Learned counsel for the petitioners
submitted that the CRT has wrongly and
illegally been conducted only in English
language in violation of the terms and
conditions
of
the
advertisement
for
selection. The Rules and the advertisement
does not provide the English language as
the medium of test, therefore, the CRT
should have been held in bilingual
languages,
i.e.,
in
Hindi
also.
The
3 All. Uday Singh & Ors. Vs. State of U.P. & Ors.
139
advertisement and admit card were issued
in bilingual languages for the said posts. He
also submitted that Diploma essential for
the posts in question is also being held in
bilingual languages. He further submitted
that as per the Government Order dated 7th
August, 1992, the Rules/Regulations of the
State Government in service matters of the
employees would be applicable on the
employees of Sanjay Gandhi Post Graduate
Institute of Medical Sciences (hereinafter
referred to as the 'SGPGI'). He also
submitted that the State Government has
issued the Uttar Pradesh Competitive
Examination
(Medium
of
Written
Examination) Rules, 1994 (hereinafter
referred to as the Rules of 1994), which
provides that the questions paper shall be in
English in Roman script and Hindi in
Devanagari Script. Therefore, the question
paper should have been in English as well
as in Hindi.

5. Learned counsel for the petitioners
relied
on
Bedanga
Talukdar
Vs.
Saifudaullah Khan and others; (2011) 12
SCC 85 and Anil Chandra Vs. Birbal
Sahni Institute of Palaeobotany; 2003
LawSuit (All) 76/2003 21 LCD 396.

6. Per contra, learned counsel for the
respondents submitted that the petitioners
have
challenged
the
selection
after
participation without any demur and after
being unsuccessful, therefore, the writ
petition is not maintainable. He further
submitted that the SGPGI is an autonomous
Institute created under the statute namely
Sanjay Gandhi Post Graduate Institute of
Medical Sciences Act, 1983 (hereinafter
referred to as the 'Act 1983'). The Director
of SGPGI is the appointing authority. He
further submitted that after framing of the
first statute of the SGPGI in 2011, the
Rules and Regulations of the Government
are not applicable unless adopted by the
Institute and Rules relied by the petitioners
have not been adopted by the Institute. He
further submitted that the CRT conducted
in pursuance of the advertisement issued on
06.01.2022 was an All India Test and is
being conducted in English medium only as
per the policy of the Institute. He also
submitted that all previous examinations
(CRT) have been conducted in English
language only. He further submitted that
though the advertisement and the admit
card were issued in bilingual languages but
the syllabus for the posts in question was
published in English language only and no
objection was ever raised by the petitioners
or any candidate. He also submitted that 10
marks were for General English in CRT. It
is also not the case of the petitioners that
they do not have the knowledge of the
English language or English is not required
for the posts in question. It is well known
to the petitioners as they are working with
the SGPGI through outsourcing agency.

7.

Learned
counsel
for
the
respondents relied on Hindi Hitrakshak
Samiti and others Vs. Union of India and
others; (1990) 2 SCC 352, Judgement and
order dated 03.09.2011 passed in Ashima
Dwivedi Vs. Registrar General High Court
Judicature at Allahabad and another;
Special Appeal No.1572 of 2011 and
Ashok Kumar and another Vs. State of
Bihar and others; (2017) 4 SCC 357.

8. I have considered the submissions
of learned counsel for the parties and
perused the records.

9.

The
advertisement
dated
06.01.2022 was issued for several posts
including the posts of Sister Grade-II,
Medical Lab Technologist and Junior
Medical Lab Technologist for which the
140 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioners had applied. The CRT was held
on 20.06.2022, result of which was
declared on 21.06.2022. The CRT was held
only in English language. Therefore, the
petitioners have approached this Court by
means of the present writ petition with a
prayer that the CRT should be held in Hindi
language also and after holding the CRT in
Hindi, the result should be declared a fresh.
Therefore, the issue to be decided in this
case is as to whether the CRT should be
held in Hindi also or not.

10. The advertisement provides that
for all the posts a CRT will be held. The
CRT will be of 2 hours duration and of 100
marks. It will contain multiple choice
questions. It is further provided that 60
marks on the subject(s) related to the posts
and of level of qualifications required; 10
marks on General English, 10 marks on
General
Knowledge,
10
marks
on
Reasoning and 10 marks on Mathematical
Aptitude. It has further been provided that
1 mark will be given for the correct answer
and 1/3rd mark will be deducted for the
wrong answer, (i.e., there will be negative
marking). Minimum qualifying marks of
the CRT for all the posts will be 50% for
General, EWS and OBC and 45% for
SC/ST.

11. The advertisement does not
provide any medium of questions paper.
However, there are 10 marks on General
English, therefore, a person appearing in
the CRT is required to know the General
English. The question paper was a multiple
choice
questions
paper.
Since
the
advertisement does not provide for any
language for CRT, therefore, the contention
of learned counsel for the petitioners that
there is violation of terms and conditions of
the advertisement is misconceived and not
tenable. Any condition, which is not
provided under the advertisement cannot be
said to have been violated. Therefore, the
judgements relied by the learned counsel
for the petitioners in the case of Bedanga
Talukdar Vs. Saifudaullah Khan and
others (supra) and Anil Chandra Vs.
Birbal Sahni Institute of Palaeobotany
(supra) are not applicable on the facts and
circumstances of the case. As per the said
judgements, the selection procedure has to
be conducted strictly in accordance with
stipulated selection procedure and the
conditions of advertisement has to be
adhered.

12. So far as the Uttar Pradesh
Competitive Examination (Medium of
Written Examination) Rules, 1994 relied by
learned counsel for the petitioners is
concerned, Rule 4 of the said Rules
provides that a candidate may answer
papers in English in Roman Script or Hindi
in Devanagari script or Urdu in Persian
script except that the language paper must
be answered in the same language;
provided that question paper as a whole,
and not for each question separately, must
be answered in any of the above script;
provided further that the question paper
shall be in English in Roman script and
Hindi in Devanagari Script. Therefore, the
rule indicates that it is not for the multiple
choice questions because in multiple choice
questions there is no requirement of
answering the question paper in any
language and it is also not the case herein.
The definition clause in Rule 3(b) provides
that the 'Examination' means a written
examination or a competitive examination
for direct recruitment to any post or service
under the Rule making power of the
Governor under the proviso to Article 309
of the Constitution. Therefore, this Rule is
applicable only to the posts or services,
which are under the Rule making power of
3 All. Uday Singh & Ors. Vs. State of U.P. & Ors.
141
the Governor under Article 309 of the
Constitution, whereas the appointment in
the SGPGI are made under the first statute
of the SGPGI by the Director. Rule 3(e)
provides that the 'Commission' means the
Uttar Pradesh Public Service Commission
or Uttar Pradesh Subordinate Service
Selection Commission as the case may be.
It indicates that this Rule is applicable on
the examinations being conducted by the
said commissions. Therefore, it is not
applicable on the selection in question.

13. The Government Order dated 7th
August, 1992 provides that in the service
matters of the employees of the Institute the
Government has accorded its consent for
applicability of the Rules/Regulations of
the State Government. Therefore, this
Government order only indicates the
consent of the Government for applicability
of the Rules/Regulations of the State
Government but it does not indicate that
SGPGI, which is an autonomous body
created under the statue, i.e., Act 1983, has
adopted and applied it. Even otherwise,
once the Rules/Regulations have been
framed by the SGPGI with the approval of
the State Government, the selection is to be
made on the basis of same and the
aforesaid
Government
Order
is
not
applicable.

14. The Hon'ble Supreme Court, in
the case of Hitrakshak Samiti and others
Vs. Union of India and others (supra),
has held that the proper and appropriate
remedy in a situation where enforcement of
the right depends upon the acceptance of a
policy of examination for admission in any
particular language to the Institution on that
basis, is a matter of policy and held that it
cannot be appropriately dealt with under
Article 32 of the Constitution. Hon'ble
Supreme Court has also held that it is
difficult to accept that in not holding
entrance examination in any particular
language, be it Hindi or regional language,
amounts to denial of admission on the
ground of language. It has also been held
that every Educational Institution has right
to determine or set out its method of
education and conditions of examination.
The relevant paragraph 6 is extracted
herein below:-

"6. Article 32 of the Constitution
of
India
guarantees
enforcement
of
fundamental rights. It is well-settled that
the jurisdiction conferred on the Supreme
Court under Article 32 is an important and
integral part of the Indian Constitution but
violation of a fundamental right is the sine
qua non for seeking enforcement of those
rights by the Supreme Court. In order to
establish the violation of a fundamental
right, the Court has to consider the direct
and inevitable consequences of the action
which is sought to be remedied or the
guarantee of which is sought to be
enforced. Mr Singhvi, counsel for the
petitioners, contends that under Article
29(2) of the Constitution no citizen shall be
denied admission into any educational
institution maintained by the State or
receiving aid out of State funds on grounds
only of religion, race, caste, language or
any of them. He contends that by not
holding the test in Hindi or other regional
languages, there is breach of Article 29(2).
He also draws our attention to Article
29(1) of the Constitution which enjoins that
any section of the citizens residing in the
territory of India or any part thereof having
a distinct language, script or culture of his
own, shall have right to conserve the same.
It is difficult to accept that in not holding
entrance examination in any particular
language. be it Hindi or regional language,
amounts to denial of admission on the
142 INDIAN LAW REPORTS ALLAHABAD SERIES
ground of language. Every educational
institution has right to determine or set out
its method of education and conditions of
examination and studies provided these do
not directly or indirectly have any casual
connection
with
violation
of
the
fundamental rights guaranteed by the
Constitution. It may be that Hindi or other
regional languages are more appropriate
medium of imparting education to very
many and it may be appropriate and proper
to hold the examinations, entrance or
otherwise, in any particular regional or
Hindi language, or it may be that Hindi or
other
regional
language
because
of
development of that language, is not yet
appropriate medium to transmute or test
the knowledge or capacity that could be
had in medical and dental disciplines. It is
a matter of formulation of policy by the
State or educational authorities in-chargeof any particular situation. Where the
existence of a fundamental right has to be
established by acceptance of a particular
policy or a course of action for which there
is no legal compulsion or statutory
imperative, and on which there arc
divergent views, the same cannot be sought
to be enforced by Article 32 of the
Constitution. Article 32 of the Constitution
cannot be a means to indicate policy
preference."

15.

Relying
on
the
aforesaid
judgement, this Court has dismissed the
Special Appeal No.1572 of 2011; Ashima
Dwivedi Vs. Registrar General High
Court Judicature at Allahabad and
another (supra).

16. The syllabus of the selection in
question was in English and no objection
was raised by the petitioners and nothing
has been brought on record to show that the
petitioners have ever made any request for
providing the syllabus in Hindi, therefore,
it cannot be said that the petitioners do not
know the English language, which may
have been required for multiple choice
questions, particularly when there are 10
marks for General English. If the syllabus
was in English language then it can safely
be inferred that the question papers would
be in English and if the petitioners have not
raised any objection at that stage, they
cannot say now that the question paper
should have been in Hindi also. A thing
which
is
not
provided
under
the
advertisement cannot be said to have been
violated in such a situation. When the
language of paper was not provided in the
advertisement, it cannot be said that CRT
has been held in violation of the terms and
conditions of the advertisement. Even
otherwise, when there are 10 marks for
English language, then English would be
required for the post in question and it can
not be accepted that a candidate who has
applied for the post knowing it well does
not know the English required for multiple
choice questions paper.

17. The Hon'ble Supreme Court, in
the case of Ashok Kumar and others Vs.
Bihar and others (supra), as held that it
was not open to the appellants after
participating in the selection process to
question the result on being declared
unsuccessful.

18. In view of the above and
considering overall facts and circumstance
of the case, this Court is of the view that
the writ petition has been filed on
misconceived and baseless ground, which
is liable to be dismissed.

19. The writ petition is, accordingly,
dismissed. No order as to costs.
----------
3 All. Girdhar Gopal Vs. State of U.P. & Ors.
143
(2023) 3 ILRA 143
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.02.2023

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Writ A No. 5977 of 2013

Girdhar Gopal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Avinash Srivastava, Yogeshwar Sharan
Srivastava

Counsel for the Respondents:
C.S.C.

A. Service Law - Disciplinary proceedings
- Salary - U.P. Government Servants
(Discipline and Appeal) Rules, 1999 - In
the matter of enquiry for awarding major
punishment, no short-cut is permissible.
The charge-sheet has to be furnished to
the delinquent to apprise him of the
charges, which should be specific along
with
the
evidence,
both
oral
and
documentary,
which
the
department
intends to rely for upholding the charges.
In case after service of charge-sheet, the
delinquent needs any documents or copy
thereof, such prayer has to be considered by
the enquiry officer and the documents which are
found relevant for enquiry are to be supplied to
the delinquent. In case copies of any such
document cannot be supplied for any valid
reason, free access has to be afforded to the
delinquent for making inspection of such
records. After this stage, the reply is to be
submitted by the delinquent within the given
time schedule and the enquiry is to proceed,
fixing the date, time and place calling the
delinquent.

Normally, the evidence by the department is
required to be led first to prove the charges
wherein the delinquent is also allowed to
participate,
who
can
cross-examine
the
witnesses, with opportunity of adducing the
evidence either in rebuttal or for disproving the
charges. It is thereafter that the enquiry officer
has to submit its report either saying that any of
the charges stand proved or not. There has to
be corroborating evidence to prove the charge
and without any material being placed by the
department to substantiate the documentary
evidence, the charge cannot be found to be
proved. There has to be a corroboration of facts
from the documents on record and if any report
is also being relied upon, the said report is also
required to be authenticated by the person who
has submitted the report, therefore, for this
purpose the oral enquiry is required to be
held for proving the charges. (Para 4)

B. Scope of Judicial Review - Judicial
review is not an appeal from a decision
but a review of the manner in which the
decision is made. It is meant to ensure
that the individual receives fair treatment
and not to ensure that the conclusion which the
authority reaches is necessarily correct in the
eyes of the court. The court/tribunal in its power
of judicial review does not act as an appellate
authority;
it
does
not
re-appreciate
the
evidence. (Para 7)

The Writ Petition No. 4274 (S/S) of 2002 was
disposed of with a direction to conduct fresh
enquiry. The court had already observed that
the principles of natural justice were not
followed by the Enquiry Officer while
conducting the enquiry. Once the matter was
remanded on a specific point, there was no
occasion to commit the same error by the
Enquiry Officer and in the present case, second
time, again it is admitted on record that the
Enquiry Officer did not fix any date, time
and place while proceeding in the enquiry
and no oral examination was done. The
Enquiry Officer completed the enquiry, exparte, only on the basis of reply of the
Petitioner. Nowhere, St. has mentioned that
any date, time or place for cross examination
was fixed. Thus, it shows that enquiry was
vitiated. In place of four months, they
completed enquiry in four years that too without
following the procedure. It would not be fit to
remand the matter at this stage. It is also borne