# Vikalp Kumar v. State of U.P. & Ors

- **Citation:** (2019) 2 ILRA 1925
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-20
- **Case number:** Writ A No. 21057 of 2018
- **Bench:** Vivek Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vikalp-kumar-v-state-of-u-p-ors-44685
- **Pages:** 9

## Headnote

A. Service Law - appointment - Employee
Discipline and Conduct Rules - alleged
that petitioner simultaneously pursued
BTC and M.Sc. (1st year) course in same
year - violation of the aforementioned
Rules - petitioner took BTC course during
the academic session 2012-2013 and
2013-2014 - M.Sc. course was pursued in
the year 2014-2015 and 2015-2016
which eventually got cancelled

The Court observed that the authorities had
failed to show any regulation or rule
contemplating that a degree and a certificate
course cannot be pursued simultaneously.
Further the petitioner was appointed without
availing the benefit of M.Sc. degree. (para 19)

B. Natural Justice
- Uttar Pradesh
Government
Servant
(Discipline
and
Appeal) Rules, 1999 - Rules 7, 8 and 9 -
enquiry report not provided to the
petitioner - enquiry vitiated
It is mandatory to provide enquiry report to the
delinquent in order to provide opportunity to submit
reply to the same. (Para 12, 13, 14 and 15)

Writ Petition allowed (E-10)
Cases cited:-

## Text

2 All. Vikalp Kumar Vs State of U.P. & Ors.
1925
Reference order is not correct position of
law.

43. Let the matter be placed before
Division Bench for deciding appeal on
merits.
----------

(2019)10ILR A 1925

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.09.2019

BEFORE

THE HON'BLE VIVEK VARMA, J.

Writ A No. 21057 of 2018

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

Counsel for the Petitioner:
Sri Ashok Khare, Sri Siddharth Khare.

Counsel for the Respondents:
C.S.C.

A. Service Law - appointment - Employee
Discipline and Conduct Rules - alleged
that petitioner simultaneously pursued
BTC and M.Sc. (1st year) course in same
year - violation of the aforementioned
Rules - petitioner took BTC course during
the academic session 2012-2013 and
2013-2014 - M.Sc. course was pursued in
the year 2014-2015 and 2015-2016
which eventually got cancelled

The Court observed that the authorities had
failed to show any regulation or rule
contemplating that a degree and a certificate
course cannot be pursued simultaneously.
Further the petitioner was appointed without
availing the benefit of M.Sc. degree. (para 19)

B. Natural Justice
- Uttar Pradesh
Government
Servant
(Discipline
and
Appeal) Rules, 1999 - Rules 7, 8 and 9 -
enquiry report not provided to the
petitioner - enquiry vitiated
It is mandatory to provide enquiry report to the
delinquent in order to provide opportunity to submit
reply to the same. (Para 12, 13, 14 and 15)

Writ Petition allowed (E-10)
Cases cited:-

1. U.O.I. & ors Vs Mohd. Ramzan Khan (1991)
1 SCC 588

2. Kuldeep Kumar Pathak Vs St. of UP & ors
(2016 )3 SCC 521

(Delivered by Hon'ble Vivek Varma, J.)

1. Present writ petition has been
filed for quashing the order dated
10.9.2018 (Annexure No. 13 to this writ
petition)
passed
by
Basic
Shiksha
Adhikari, Bijnor i.e. respondent no. 4
whereby the services of the petitioner as
an Assistant Teacher has been terminated.
The
petitioner
also
prayed
for
reinstatement and for payment of his
salary on month to month basis and
further to release his arrears of salary
w.e.f. 13.3.2018 with interest.

2. In brief, an advertisement dated
12.12.2014 was placed in the news papers
inviting applications for the post of
Assistant
Teachers
in
Primary
Institutions. Petitioner having possessed
Graduation
degree
and
two
years
Bachelor
Training
Certificate
(BTC)
Course applied pursuant to the said
advertisement.
The
petitioner
was
selected under General category and was
accordingly issued appointment letter
dated 28.6.2016 by the Basic Shiksha
Adhikari, Bijnor. The petitioner joined as
Assistant
Teacher
on
27.6.2018
at
1926 INDIAN LAW REPORTS ALLAHABAD SERIES
Primary
Institution,
Pittahedi,
Block
Kiratpur,
District
Bijnor.
After
completion of one year, the appointment
was
confirmed
by
the
competent
authority.

3. On 13.3.2018, petitioner was
placed under suspension by the District
basic Education Officer, Bijnor on the
allegation that he had simultaneously
pursued BTC course and M.Sc. First
Year, as a regular student in the academic
session 2014-15. The order of suspension
was challenged by the petitioner before
this Court being Civil Misc Writ Petition
No. 12548 of 2018, which was dismissed
on 24.5.2018 with the observation that the
authority concerned shall conclude the
departmental proceedings in accordance
with law, within a period of three months
from the date of production of certified
copy of the order after considering the
reply of the petitioner.

4. On 16.7.2018 a charge sheet was
issued to the petitioner which contained
three charges. The first charge states that
the petitioner had simultaneously pursued
BTC course from District Education and
Training Institute, Bijnor and M.Sc. (Ist
Year) from Vardhman College, Bijnor in
the same year and thus has played fraud
upon the department. The second charge
is with regard to lowering the image of
the department and third charge pertains
to indiscipline and violation of Employee
Discipline and Conduct Rules.

5. The petitioner submitted his reply
that he had done the BTC Course in the
academic session 2012-13, 2013-14 while
the M.Sc. Course was undergone by him
in the academic sessions 2014-15 and
2015-16, therefore, the academic sessions
are different. He got the M.Sc. Degree
cancelled, attention in this regard was
drawn to the cancellation order dated
27.3.2018. It was categorically stated that
he had not taken any benefit of M.Sc,
degree in obtaining the appointment on
the post of Assistant Teacher in Primary
Institution. It was also submitted that even
a perusal of his application form for
appointment on the post of Assistant
Teacher would reflect that he has not even
mentioned his M.Sc. Qualification.

6. Thereafter, a letter dated 7.9.2018
was issued by Block Education Officer,
Kiratpur seeking further reply on certain
other issues, which was also replied by
the petitioner. After completing the
inquiry an inquiry report dated 10.9.2018
was submitted by the Block Development
Officer to the District Basic Education
Officer. Relying upon the said ex-parte
inquiry report dated 10.9.2018, the
services of the petitioner were terminated
on the same day vide order dated
10.9.2018 passed by District Basic
Education Officer, Bijnor. It is this order
which is subject matter of challenge
before this Court.

7. Learned counsel for the petitioner
has submitted that the aforesaid impugned
order has been passed in violation of
principles of natural justice inasmuch as
before passing the order impugned, no
opportunity of hearing of any kind
whatsoever was afforded to the petitioner.
He has not been provided any relevant
documents including the copy of inquiry
report, and he has also not been afforded
an opportunity of oral hearing, therefore,
he submitted that the impugned order is
bad and is liable to be quashed. It was
further contended that there is no bar
against pursuing a degree course and a
certificate course, simultaneously, in view
2 All. Vikalp Kumar Vs State of U.P. & Ors.
1927
of the resolution of University Grants
Commission, New Delhi. He has also
submitted that the petitioner has not
played fraud or misrepresented before the
respondents.

8. Per contra, learned counsel for the
respondents submitted that the impugned
order
has
been
passed
strictly
in
accordance with law and hence no
interference is called for. The writ petition
lacks merit and is liable to be dismissed.

9. Heard learned counsel for the
parties and perused the material on
record.

10. The question that needs to be
answered
first
as
to
whether
the
disciplinary authority was justified in
passing the impugned order of removal of
petitioner from service without supplying
the copy of the enquiry report and further
whether the procedure prescribed under
the Rules for holding departmental
inquiry in respect of imposition of major
penalty have been followed or not.

11. It is not in dispute that service
conditions of the petitioner is governed by
the Uttar Pradesh Government Servant
(Discipline and Appeal) Rules, 1999. It is
apposite to extract Rules 7, 8 and 9 of the
Rules, 1999, which read as follows:

"7. Procedure for imposing
major penalties.--Before imposing any
major penalty on a Government Servant,
an inquiry shall be held in the following
manner:

(i) The Disciplinary Authority
may himself inquire into the charges or
appoint an Authority subordinate to him
as Inquiry Officer to inquire into the
charges.

(ii) The facts constituting the
misconduct on which it is proposed to
take action shall be reduced in the form of
definite charge or charges to be called
charge-sheet. The charge-sheet shall be
approved by the disciplinary authority :

Provided
that
where
the
appointing authority is Governor, the
charge-sheet may be approved by the
Principal Secretary or the Secretary; as
the case may be, of the concerned
department.

(iii) The charges framed shall be
so precise and clear as to give sufficient
indication to the charged Government
servant of the facts and circumstances
against him. The proposed documentary
evidence and the name of the witnesses
proposed to prove the same along with
oral evidence, if any, shall be mentioned
in the charge-sheet.

(iv) The charged Government
servant shall be required to put in a
written statement of his defence in person
on a specified date which shall not be less
than 15 days from the date of issue of
charge-sheet and to state whether he
desires to cross-examine any witness
mentioned
in
the
charge-sheet
and
whether desires to give or produce
evidence in his defence. He shall also be
informed that in case he does not appear
or file the written statement on the
specified date, it will be presumed that he
has none to furnish and Inquiry Officer
shall proceed to complete the inquiry ex
parte.

(v) The charge-sheet, alongwith
the copy of the documentary evidences
mentioned therein and list of witnesses
and their statements, if any shall be served
on the charged Government servant
personally or by registered post at the
address mentioned in the official records.
In case the charge-sheet could not be
1928 INDIAN LAW REPORTS ALLAHABAD SERIES
served in aforesaid manner, the chargesheet shall be served by publication in a
daily newspaper having wide circulation :

Provided
that
where
the
documentary evidence is voluminous,
instead of furnishing its copy with chargesheet, the charged Government servant
shall be permitted to inspect the same
before the Inquiry Officer.

(vi)
Where
the
charged
Government servant appears and admits
the charges, the Inquiry Officer shall
submit his report to the disciplinary
authority on the basis of such admission.

(vii)
Where
the
charged
Government servant denies the charges the
inquiry officer shall proceed to call the
witnesses proposed in the charge-sheet and
record their oral evidence in presence of the
charged Government servant who shall be
given opportunity to cross-examine such
witnesses. After recording the aforesaid
evidence, the Inquiry Officer shall call and
record the oral evidence which the charged
Government servant desired in his written
statement to be produced in his defence:

Provided
that
the
Inquiry
Officer may for reasons to be recorded in
writing refuse to call a witness.

(viii) The Inquiry Officer may
summon any witness to given evidence or
require any person to produce documents
before him in accordance with the
provisions
of
the
Uttar
Pradesh
Departmental Inquiries (Enforcement of
Attendance of Witness and Production of
Documents) Act, 1976.

(ix) The Inquiry Officer may
ask any question he pleases, at any time
of any witness or from person charged
with a view to discover the truth or to
obtain proper proof of facts relevant to
charges.

(x)
Where
the
charged
Government servant does not appear on
the date fixed in the inquiry or at any
stage of the proceeding in spite of the
service of the notice on him or having
knowledge of the date, the Inquiry Officer
shall proceed with the inquiry ex parte. In
such a case, the Inquiry Officer shall
record
the
statement
of
witnesses
mentioned in the charge-sheet in absence
of the charged Government servant.

(xi) ..................

(xii) ..................

8.
Submission
of
inquiry
report.-- When the inquiry is complete,
the Inquiry Officer shall submit its inquiry
report to the Disciplinary Authority along
with all the record of the inquiry. The
Inquiry Report shall contain a sufficient
record of brief facts, the evidence and
statement of the findings on each charge
and the reasons thereof. The Inquiry
Officer
shall
not
make
any
recommendation about the penalty.

9. Action on Inquiry Report.--
(1) The Disciplinary Authority may, for
reasons to be recorded in writing, remit
the case for re-inquiry to the same or any
other Inquiry Officer under intimation tot
he charged Government servant. The
Inquiry Officer shall thereupon proceed to
hold the inquiry from such stage as
directed by the Disciplinary Authority,
according to the provisions of Rule 7.

(2) ...........

(3) ..........

(4)
If
the
Disciplinary
Authority, having regard to its findings on
all or any of charges is of the opinion that
any penalty specified in Rule 3 should be
imposed on the charged Government
servant, he shall give a copy of the
inquiry report and his findings recorded
under sub-rule (2) to the charged
Government servant and require him to
submit his representation if he so desires,
within a reasonable specified time. The
2 All. Vikalp Kumar Vs State of U.P. & Ors.
1929
Disciplinary
Authority
shall,
having
regard to all the relevant records relating
to the inquiry and representation of the
charged Government servant, if any, and
subject to the provisions of Rule 16 of
these rules, pass a reasoned speaking
order imposing one or more penalties
mentioned in Rule 3 of these rules and
communicate the same to the charged
Government servant."

12. The procedure as contemplated
under the Rule 7,8 & 9 of the Rules 1999
for imposition of major penalty was not
followed. The enquiry officer admittedly
did not fix any date or time for the
enquiry, neither any evidence was led by
the District Basic Education Officer to
substantiate the charge.

13. The enquiry officer submitted
his report to the Disciplinary authority on
10.9.2018. The Disciplinary Authority i.e.
District Basic Education Officer agreed
with the findings of the enquiry report and
without supplying the copy of the same
and without issuing any show cause
against the proposed punishment, passed
the order dated 10.9.2018 terminating his
services. Failure to supply copy of the
inquiry report, before the disciplinary
authority, takes its decision on the
charges, is a denial of reasonable
opportunity to the employee to prove his
innocence and is a clear breach of the
principles of natural justice.

14. The object of rules of natural
justice is to ensure that an employee is
treated fairly in proceedings which may
culminate in imposition of punishment
including dismissal/removal from service.
It is a basic requirement of rules of natural
justice that an employee should be given a
reasonable opportunity of being heard in
any proceeding which may culminate in a
major punishment being imposed on the
employee.
Thus,
the
disciplinary
proceedings stood vitiated.

15. The Hon'ble Apex Court in the
case of Union of India & Ors. Vs.
Mohd. Ramzan Khan, (1991) 1 SCC
588, has held that it is mandatory to
provide enquiry report to the delinquent in
order to provide an opportunity to submit
reply to the same. In case the punishment
order imposing major penalty has been
passed without providing enquiry report
to the delinquent employee the said
punishment order is not sustainable in the
eyes of law. The relevant paragraphs read
as under:-

"14. This Court in Mazharul
Islam Hashmi v. State of U.P. [(1979) 4
SCC 537 : 1980 SCC (L&S) 54] pointed
out:

"Every person must know what
he is to meet and he must have
opportunity of meeting that case. The
legislature,
however,
can
exclude
operation of these principles expressly or
implicitly. But in the absence of any such
exclusion, the principle of natural justice
will have to be proved."

15. Deletion of the second
opportunity from the scheme of Article
311(2) of the Constitution has nothing to
do with providing of a copy of the report
to the delinquent in the matter of making
his representation. Even though the
second stage of the inquiry in Article
311(2) has been abolished by amendment,
the delinquent is still entitled to represent
against the conclusion of the Inquiry
Officer holding that the charges or some
of the charges are established and holding
the delinquent guilty of such charges. For
doing away with the effect of the enquiry
1930 INDIAN LAW REPORTS ALLAHABAD SERIES
report or to meet the recommendations of
the Inquiry Officer in the matter of
imposition of punishment, furnishing a
copy of the report becomes necessary and
to have the proceeding completed by
using some material behind the back of
the
delinquent
is
a
position
not
countenanced by fair procedure. While by
law application of natural justice could be
totally ruled out or truncated, nothing has
been done here which could be taken as
keeping natural justice out of the
proceedings
and
the
series
of
pronouncements of this Court making
rules of natural justice applicable to such
an inquiry are not affected by the Fortysecond Amendment. We, therefore, come
to the conclusion that supply of a copy of
the
inquiry
report
along
with
recommendation, if any, in the matter of
proposed punishment to be inflicted
would be within the rules of natural
justice
and
the
delinquent
would,
therefore, be entitled to the supply of a
copy
thereof.
The
Forty-second
Amendment has not brought about any
change in this position.

16.
At
the
hearing
some
argument had been advanced on the basis
of Article 14 of the Constitution, namely,
that in one set of cases arising out of
disciplinary proceedings furnishing of the
copy of the inquiry report would be
insisted upon while in the other it would
not be. This argument has no foundation
inasmuch as where the disciplinary
authority is the Inquiry Officer there is no
report. He becomes the first assessing
authority to consider the evidence directly
for finding out whether the delinquent is
guilty and liable to be punished. Even
otherwise, the inquiries which are directly
handled by the disciplinary authority and
those which are allowed to be handled by
the Inquiry Officer can easily be classified
into two separate groups ? one, where
there is no inquiry report on account of
the fact that the disciplinary authority is
the Inquiry Officer and inquiries where
there is a report on account of the fact that
an officer other than the disciplinary
authority has been constituted as the
Inquiry Officer. That itself would be a
reasonable classification keeping away
the application of Article 14 of the
Constitution.

17. There have been several
decisions in different High Courts which,
following the Forty-second Amendment,
have taken the view that it is no longer
necessary to furnish a copy of the inquiry
report to delinquent officers. Even on
some occasions this Court has taken that
view. Since we have reached a different
conclusion the judgments in the different
High Courts taking the contrary view
must be taken to be no longer laying
down good law. We have not been shown
any decision of a coordinate or a larger
bench of this Court taking this view.
Therefore, the conclusion to the contrary
reached by any two-Judge bench in this
Court will also no longer be taken to be
laying down good law, but this shall have
prospective
application
and
no
punishment imposed shall be open to
challenge on this ground.

18. We make it clear that
wherever there has been an Inquiry
Officer and he has furnished a report to
the
disciplinary
authority
at
the
conclusion of the inquiry holding the
delinquent guilty of all or any of the
charges with proposal for any particular
punishment or not, the delinquent is
entitled to a copy of such report and will
also be entitled to make a representation
against it, if he so desires, and nonfurnishing of the report would amount to
violation of rules of natural justice and
2 All. Vikalp Kumar Vs State of U.P. & Ors.
1931
make the final order liable to challenge
hereafter."

16. Now coming to the other issue
as to whether the petitioner has played
fraud
or
misrepresented
in
getting
appointment as Assistant Teacher. In this
connection, a perusal of the record would
disclose that the petitioner completed two
years BTC course during the academic
session 2012-13 and 2013-14, while
M.Sc. Course was pursued and completed
by the petitioner during academic session
2014-15 and 2015-16. Therefore, the
academic session of both the courses are
different.
Further,
based
upon
the
application dated 14.3.2018 filed by the
petitioner,
the
M.J.P.
Rohilkhand
University, Bareilly vide order dated
27.3.2018 proceeded to cancel the M.Sc.
Degree of the petitioner. It appears from
the impugned order dated 10.9.2018 that
neither the Enquiry Officer nor the
Disciplinary Authority considered this
issue and passed the order terminating the
services of the petitioner. Non supply of
the enquiry report thus has seriously
prejudiced the cause of the petitioner.

17. The impugned order would also
reflect that it proceeds on the charge that
by
appearing
in
two
examinations
simultaneously
for
the
same
year,
petitioner has played fraud and lowered
the image of the respondents-department.
Further the petitioner also acted in
violation of the relevant Service Conduct
Rules.

18. The reasoning given by the
District Basic Education Officer is clearly
unsustainable in as much as no such
provision
governing
the
petitioner's
service has been brought to the notice of
the Court, which may prohibit any such
employee
to
undergo
in
the
two
examinations simultaneously. Infact the
petitioner has relied upon the resolution of
the University Grants Commission, New
Delhi dated 28.12.2012, whereby a
decision was taken that "a student
pursuing a degree programme under
regular mode may be allowed to pursue a
maximum of one certificate/diploma/
advanced
diploma/
PG
Diploma
programme
simultaneously
either
in
regular or open and distance mode in the
same university or from other institutions"
to contend that a student may pursue a
degree course along with a certificate
course.

19. Thus, it is more than apparent
that
the
authorities
have
neither
considered the issue in correct perspective
nor the respondents have been able to
show that there is any such regulation or
rule contemplating that a degree and a
certificate course cannot be pursued
simultaneously. Moreover, the petitioner
has been selected by the respondents on
fulfilling
the
essential
qualifications
prescribed for the post of Assistant
Teacher. The petitioner has not derived
any benefit on account of his postgraduate degree (M.Sc.). The M.Sc.
Degree
was
got
cancelled
by
the
petitioner. Even otherwise in view of the
University Grants Commission resolution
dated 28.12.2012, a student can pursue a
degree course and a certificate course
simultaneously. Therefore, appointment
of the petitioner cannot be annulled on the
ground that the petitioner tried to pursue
both the courses simultaneously. It is also
not the case of the respondents that
petitioner has pursued the courses while
holding the post of Assistant Teacher. The
allegation
that
the
petitioner
has
committed fraud or misrepresentation in
1932 INDIAN LAW REPORTS ALLAHABAD SERIES
procuring the job of Assistant Teacher is
not substantiated from the record and
pleadings of the respondents.

20. A similar issue also arose for
consideration before the Hon'ble the Apex
Court in Kuldeep Kumar Pathak Vs
State of UP and others, 2016 (3) SCC
521, wherein the Court held as under:-

"6. Before us, Mr. Pradeep
Kant, learned senior counsel for the
appellant has made a neat legal argument.
He submits that though the impugned
judgment proceeds on the basis that
appearing
in
two
examinations
simultaneously for the same year is
violation of the Regulations of the Board,
this reason given by the High Court is
clearly unsustainable inasmuch as no such
Regulation is shown by the Board which
prohibited any such candidate to appear in
two examinations in the same year. The
learned senior counsel further argued that
the impugned order passed by the
respondents
for
confiscating
his
Certificate of Intermediate exam was,
otherwise also, contrary to the principles
of natural justice inasmuch as no show
cause notice and opportunity of hearing
was given to the appellant before passing
such an order, which was passed belatedly
after a period of nine years from the
passing of the said examination by the
appellant.

7. We are of the opinion that
both the submissions of the learned senior
counsel are valid in law and have to
prevail. The High Court has been
influenced by the argument of the
respondents that simultaneous appearance
in two examinations by the appellant in
the same year was 'contrary to the
Regulations'.
However,
no
such
Regulation has been mentioned either by
the learned Single Judge or the Division
Bench. Curiously, no such Regulation has
been pointed out even by the respondents.
On our specific query to the learned
counsel for the respondents to this effect,
he expressed his inability to show any
such Regulation or any other rule or
provision
contained
in
the
U.P.
Intermediate Education Act, 1921 or
Supplementary
Regulations
of
1976
framed under the aforesaid Act or in any
other governing Regulations. Therefore,
the entire foundation of the impugned
judgment of the High Court is erroneous.

8. It is also pertinent to note that
the appellant's intermediate examination
and result thereof was not in question
before the U.P. Board. No illegality in the
admission in that class has been pointed out
by the respondents. The alleged charge of
simultaneously
appearing
in
two
examinations, one of the U.P. Board and other
of the Sanskrit Board, was with respect to
Class X and equivalent examination which
did not relate to admission in intermediate
course. The only provision for canceling the
said admission is contained in Regulation (1)
of Chapter VI-B. It details the procedure for
passing the order of punishment canceling
intermediate results and, inter alia, prescribes
that a committee consisting of three different
members is to be constituted and entrusted
with the responsibility of looking into and
disposing of cases relating to unfair means
and award appropriate penalty as specified in
the Regulations itself. However, there is no
allegation of any unfair means adopted by the
appellant in the instant case and, therefore,
that Regulation has no applicability. Even
otherwise, no such committee was constituted.
Therefore,
having
taken
admission
in
Intermediate on the basis of past certificate
issued by a separate Board, which was
recognised, and not on the basis of the result
of Class X of the U.P. Board, the appellant
2 All. Jitendra Tiwari & Ors. Vs State of U.P. & Ors.
1933
derived no advantage from his examination of
the U.P. Board while seeking admission in
Intermediate course. Thus, from any angle the
matter is to be looked into, the impugned
orders dated April 20, 2011 and May 10, 2011
passed by the respondents are null and void,
apart from the fact that they are in violation of
the principles of natural justice.

9. The appeal is, accordingly,
allowed with costs by quashing the
aforesaid impugned orders and reversing
the impugned judgment of the High
Court. The appellant shall, accordingly,
be entitled to all consequential benefits."

21. The law laid by the Hon'ble
Apex Court cited in the preceding
paragraph is fully applicable to the facts
and circumstances of the present case.

22. In view of the aforesaid the writ
petition is allowed. The impugned order
dated 10.9.2018 (Annexure No. 13 to this
writ petition) passed by Basic Shiksha
Adhikari, Bijnor i.e. respondent no. 4. is
hereby
quashed
and
consequently
respondents are directed to reinstate the
petitioner forthwith with all consequential
benefits.
----------

(2019)10ILR A 1933

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.08.2019

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.

Writ A No. 70374 of 2011

Jitendra Tiwari & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Petitioners:
Sri Ajit Kumar Singh, Sri A. Kumar, Sri
Ramesh Chandra Dwivedi, Sri S.P. Rai, Sri
Vinod Kumar Singh.

Counsel for the Respondents:
C.S.C., Sri Harshita Raghuvanshi.

A. Constitution of India- Article 226-
seeking payment of salary from State
Exchequer from the date of appointment
in the primary section- primary school
attached to intermediate college.

Primary institution teachers were brought
in grant-in-aid list of the State Government-
entitle
to
receive
salary
from
State
Exchequer-District
Inspector
of
School
granted
prior
approval
for
publishing
notification for vacancies- Published in
"Jagat Asha Deoria" and "Deoria Express
Deoria"- no A. Service Law - U.P. Cooperative
Societies
Employees
Service
Regulation, 1975: Regulation 84; U.P. Cooperative Federation Limited Karamchari
Seva Niyamawali, 1980: Rule 83

The Single Judge while relying on the
judgment of Single Judge passed in Satya
Narain Vs Praband Nideshak and ors dispensed
the appellant from service and ordered for
recovery of pecuniary loss caused from the
embezzlement of money, thereby awarding
identical set of two punishments which are
awarded simultaneously.

The Division Bench in Virendra Kumar Gupta
vs. State of U.P. and ors without taking note of
the judgment of Single Judge of Satya Narain
(Supra) emphasized that Regulation 84 of the
Regulation 1975 prevail over and above
Niyamawali,
1980
therefore
only
one
punishment could have been awarded.

The matter has been referred to the larger
bench as to analyze the correct position of law
when punishment is awarded under Regulation
84 read with Rule 83.
Matter referred to Larger Bench (E-10)

Cases referred:-