# University and Ors v. Mansoor Ali Khan

- **Citation:** (2012) 2 ILRA 910
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-07-30
- **Case number:** Appeal Nos. 406K of 2012, 407K of 2012
- **Bench:** Sibghat Ullah Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/university-and-ors-v-mansoor-ali-khan-42209
- **Pages:** 3

## Headnote

Constitution
of
India,
Article
226Principle of Natural Justice-dismissal
order challenged allegations of violation
of Principle of Natural Justice-during
preliminary enquiry even being 'Ahir' by
cast had produced cast certificate as
Scheduled
Cast-held-where
guilt
admitted-technical plea of procedural
omission or violating Natural Justice-not
available-dismissal-proper.

Held: Para 6 and 7

As petitioner categorically admitted in
the preliminary inquiry that he obtained
appointment by showing himself to be a
member of scheduled caste hence it was
not necessary to search the initial
application
form
of
the
petitioner.
Moreover there is no allegation that in
the service book/record petitioner has
not been shown to have been appointed
under scheduled caste reserved quota.

Supreme
Court
in
Aligarh
Muslim
University and Ors. v. Mansoor Ali Khan
AIR 2000 SC 2783 and Ashok Kumar
Sonkar v. Union of India and Ors. (2007)
4 SCC 54 has held that a person
challenging an order on the ground that
2 All] Constable 4725 Manoj Kumar V. State of U.P. and others
911
opportunity of hearing was not provided
to him will have to show in the petition
challenging the order that in case
opportunity had been provided, what
plausible cause he would have shown.
Opportunity of hearing is not an empty
formality.
Case law discussed:
AIR 2000 SC 2783; (2007) 4 SCC 54; AIR 2010
SC 75; AIR 2006 SC 1800

## Text

910 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
disclosing the reason for not approaching
the court well within the time, and in
absence of such application or in absence
of any notice to the other side, the court
can only dismiss the appeal/revision as
barred by time and in no case it can
condone the delay or admit/allow the
Appeal/Revision.

14. In view of the submissions made
by the learned counsel for the petitioners,
admittedly, the appeals were highly barred
by time and the appellate court, without
condoning the delay has admitted the
appeals. Therefore, in view of the
provisions contained under section 3 of the
Limitation Act and sub-rules (1) and (2) of
Rule 3A of Order 41 of CPC, the appeals
ought to have been rejected as barred by
time and, in fact, there was no appeal
unless the delay was condoned, as has been
held by the apex Court.

15. In view of the legal position, as
discussed above, the impugned order dated
3.4.2012,
passed
by
Commissioner,
Gorakhpur Division, District Gorakhpur
(respondent no. 2) cannot be sustained.

16. The writ petition succeeds and is
allowed. The impugned orders dated
3.4.2012, passed by respondent no. 2 in
Appeal Nos. 406K of 2012, 407K of 2012
and 408K of 2012, are hereby quashed.

17. The Commissioner, Gorakhpur
Division, Gorakhpur (respondent no. 2) is
directed to, first of all, decide the
application for condonation of delay filed
in Appeal Nos. 406K of 2012, 407K of
2012 and 408K of 2012 (Annexure nos. 9,
11 and 13 to the writ petition) and if delay
is condoned, thereafter, may proceed to
hear the appeals in accordance with law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.07.2012

BEFORE
THE HON'BLE SIBGHAT ULLAH KHAN, J.

Civil Misc. Writ Petition no. 36719 of 2012

Constable 4725 Manoj Kumar

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

Counsel for the Petitioner:
Sri N.L. Pandey
Sri Suyash Pandey

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Article
226Principle of Natural Justice-dismissal
order challenged allegations of violation
of Principle of Natural Justice-during
preliminary enquiry even being 'Ahir' by
cast had produced cast certificate as
Scheduled
Cast-held-where
guilt
admitted-technical plea of procedural
omission or violating Natural Justice-not
available-dismissal-proper.

Held: Para 6 and 7

As petitioner categorically admitted in
the preliminary inquiry that he obtained
appointment by showing himself to be a
member of scheduled caste hence it was
not necessary to search the initial
application
form
of
the
petitioner.
Moreover there is no allegation that in
the service book/record petitioner has
not been shown to have been appointed
under scheduled caste reserved quota.

Supreme
Court
in
Aligarh
Muslim
University and Ors. v. Mansoor Ali Khan
AIR 2000 SC 2783 and Ashok Kumar
Sonkar v. Union of India and Ors. (2007)
4 SCC 54 has held that a person
challenging an order on the ground that
2 All] Constable 4725 Manoj Kumar V. State of U.P. and others
911
opportunity of hearing was not provided
to him will have to show in the petition
challenging the order that in case
opportunity had been provided, what
plausible cause he would have shown.
Opportunity of hearing is not an empty
formality.
Case law discussed:
AIR 2000 SC 2783; (2007) 4 SCC 54; AIR 2010
SC 75; AIR 2006 SC 1800

(Delivered by Hon'ble Sibghat Ullah Khan, J.)

1. Heard learned counsel for the
petitioner and learned standing counsel for
the respondents.

2. Petitioner was appointed as
constable in P.A.C. in the year 1998 against
vacancy reserved for scheduled caste. For
the said purpose petitioner had filed a
certificate showing that he was Chamar by
caste which is a scheduled caste. Thereafter
some complaint was received that petitioner
was only backward (Ahir/Yadav) and he
had obtained appointment against scheduled
caste vacancy by filing false caste
certificate. Chargesheet/notice was issued
on 5.8.2006 to the petitioner to show cause
as to why his appointment shall not be
cancelled. Petitioner filed reply. After
considering the reply (which was virtually
an admission) petitioner's appointment was
cancelled through order dated 26.8.2006
passed by the Commandant 42nd Battalion,
P.A.C., Naini, Allahabad, copy of which is
Annexure-3 to the writ petition. Against the
said order petitioner filed appeal which was
dismissed
on
11.6.2012
by
Deputy
Inspector General of P.A.C., Eastern Zone,
U.P., Lucknow hence this writ petition.

3. Petitioner filed reply to the charge
sheet/show cause notice on 14.8.2006 and
17.8.2006. Copy of notice dated 5.8.2006
has been annexed alongwith writ petition
but copies of replies have not been annexed
by the petitioner.

4. In the order dated 26.8.2006 in
para-4 it is mentioned that petitioner in his
replies dated 14.8.2006 and 17.8.2006
mentioned that at the time of appointment
he had not filed any certificate showing that
he belonged to scheduled caste and that he
was a member of Ahir caste which was
O.B.C. It is further mentioned in the said
para that the allegation of the petitioner was
utterly false as in his statement given before
Inquiry Officer in preliminary inquiry he
categorically stated that at the time of his
appointment in October, 1998 he went to
Tehsil Jamaniya District Ghazipur for
obtaining caste certificate and there he met a
person whose name he did not know and
that person gave him a certificate of
scheduled caste and on the basis of the said
certificate petitioner was taken in service. It
was further stated by him before Inquiry
Officer that afterwards for preparation of
service/character book he was asked to
produce caste certificate and as he belonged
to Yadav caste hence he obtained a
certificate to that efect and presented the
same. Accordingly, in the impugned order
dated 26.8.2006 ( as well as in the appellate
order) it was mentioned that petitioner
admitted that he was not scheduled caste
still
he
obtained
employment
under
scheduled caste reserved quota.

5. The main argument of learned
counsel for the petitioner is that he was
forced to confess before the Inquiry Officer.
This is an untenable argument. Before the
authorities below this plea does not appear
to have been taken. It has not been shown
that what compulsion was exercised upon
the petitioner to give the statement.
Petitioner took up a fantastic case that a
person whose name was not known to the
912 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
petitioner gave a scheduled caste certificate
and on the basis of that certificate petitioner
obtained employment.

6. The next argument of learned
counsel for the petitioner is that no formal
inquiry was held and petitioner's application
for appointment was not produced before
the Inquiry Officer or the authority which
passed the termination order to show that
petitioner had obtained employment by
asserting that he belonged to scheduled
caste. As petitioner categorically admitted
in the preliminary inquiry that he obtained
appointment by showing himself to be a
member of scheduled caste hence it was not
necessary to search the initial application
form of the petitioner. Moreover there is no
allegation that in the service book/record
petitioner has not been shown to have been
appointed under scheduled caste reserved
quota.

7. Supreme Court in Aligarh Muslim
University and Ors. v. Mansoor Ali Khan
AIR 2000 SC 2783 and Ashok Kumar
Sonkar v. Union of India and Ors. (2007)
4 SCC 54 has held that a person
challenging an order on the ground that
opportunity of hearing was not provided to
him will have to show in the petition
challenging
the
order
that
in
case
opportunity had been provided, what
plausible cause he would have shown.
Opportunity of hearing is not an empty
formality.

8. Supreme Court in Chairman cum
Managing Director, Coal India Limited
and Anr. vs. Mukul Kumar Choudhuri
and Ors. AIR 2010 SC 75 has held that if
delinquent admits the charge, no procedural
irregularity can be taken into consideration.

9. In Commissioner of Police, New
Delhi v. Narender Singh AIR 2006 SC
1800 it has been held that even after
acquittal in criminal case, in departmental
proceedings the employee can be dismissed
from service merely on the basis of
confession made by him before police
(which was not admissible in criminal case
hence in the criminal case the employee
concerned was acquitted).

10. Accordingly, there is absolutely no
merit in the writ petition hence it is
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.07.2012

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.

Civil Misc. Writ Petition no. 36242 of 2008

Rituraj Singh

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

Counsel for the Petitioners:
Amar Singh

Counsel for the Respondents:
C.S.C.

U.P. Intermediate Education Act-1921Chapter III-Part II-B-correction of date
of birth and name-petitioner failed in
High School Examination 2004-agagin
appeared
in
2005-date
of
birth
incorrectly recorded in mark sheet as
07.07.1991
instead
of
07.07.1992inspite of direction of Court-Secretary
rejected
representation
saying
the
Principal has already corrected-heldchange on basis of report of Principal
without opportunity of hearing-not only
in violation of principle of Natural Justice
but
contrary
to
regulation-order
quashed-Secretary to re-examine the