# Vishwash Kanaujia v. Dr. Ram Chandra Pathak & Ors

- **Citation:** (2024) 3 ILRA 413
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-15
- **Case number:** J. HON'BLE BRIJ RAJ SINGH J. Special Appeal No. 537 of 2023
- **Bench:** Attau Rahman Masoodi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishwash-kanaujia-v-dr-ram-chandra-pathak-ors-51644
- **Pages:** 21

## Headnote

A. Service Law - Constitution of India -
Article 14 & 15 - Hostile discrimination -
U.P. Government Servants (Disciplinary &
Appeal)
Rules,
1999
-
Rule
14
-
Disciplinary proceeding - Punishment -
Charge of allotting marks to the candidate
whimsically, while acting as the Subject
expert
member
in
the
Selection
Committee - Chairman of Committee was
exonerated from the charges - Effect -
Held, since the allegations have been
levelled mainly against the Chairman,
against whom exoneration order has been
passed by the Central Government, as to
how and under what circumstances, the
respondent
No.1/
petitioner
being
a
Member of Selection Committee, that too
in the capacity of Subject Expert can be
penalized
-
The
Chairman
who
is
responsible for all misdeeds has been
exonerated by the Government of India,
but a person who has been nominated as
subject expert has been punished for the
mistake committed
by
the
Chairman
which amounts to hostile discrimination
and violation of Articles 14 and 15 of the
Constitution - Since there is no role of the
respondent No.1/petitioner to appoint the
candidates and the inquiry conducted by
the department is wholly unfounded, we
are of the firm opinion that setting aside
of the impugned punishment order by the
learned
Single
Judge
is
wholly
in
consonance with law. (Para 63, 64 and
69)

B. Service Law - UP Government Servant
Criterion for Recruitment by Promotion
Rules, 1994 - Rule 4 - Promotion -
Additional Cane Officer - Criteria of
promotion
-
Principle
of
merit
-
Applicability - How far seniority has
significance - Writ court directed for
holding review Departmental Promotion
Committee (D.P.C.) - Validity challenged -
Held, direction issued by the learned
Single Judge for holding review DPC is not
an emerging necessity and would offend
the principle of merit as prescribed under
Rule 4 of the Rules, 1994 - Any procedure
giving
precedence
to
seniority
as
contemplated under para
11 of the
Government Order would clearly stand
contrary to the essence of merit wherever
it is deciphered on the scale of marks -
High Court rejected the argument of the
respondent/petitioner
that
seniority
would assume the decisive role calling it
fallacious. (Para 81)

Appeal allowed in part. (E-1)

List of cases cited :-

## Text

_Characters 0–39,978 of 70,147. This is a partial read: ask again with offset=39978 for what follows._

3 All. Vishwash Kanaujia Vs. Dr. Ram Chandra Pathak & Ors.
413
appellant de hors the Rules who is not at all
eligible to be considered for appointment is
illegal and has rightly been set aside.

(37) In the result, the Special Appeal
filed by the appellant fails and is dismissed
accordingly.
----------
(2024) 3 ILRA 413
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.03.2024
BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI,
J.
HON'BLE BRIJ RAJ SINGH J.

Special Appeal No. 537 of 2023
along with
Special Appeal Defective No. 930 of 2023

Vishwash Kanaujia ...Appellant
Versus
Dr. Ram Chandra Pathak & Ors.
 ...Respondents

Counsel for the Appellant:
Utsav Mishra, Abhineet Jaiswal, Gaurav
Mehrotra

Counsel for the Respondents:
Raj Kumar Pandey, C.S.C.

A. Service Law - Constitution of India -
Article 14 & 15 - Hostile discrimination -
U.P. Government Servants (Disciplinary &
Appeal)
Rules,
1999
-
Rule
14
-
Disciplinary proceeding - Punishment -
Charge of allotting marks to the candidate
whimsically, while acting as the Subject
expert
member
in
the
Selection
Committee - Chairman of Committee was
exonerated from the charges - Effect -
Held, since the allegations have been
levelled mainly against the Chairman,
against whom exoneration order has been
passed by the Central Government, as to
how and under what circumstances, the
respondent
No.1/
petitioner
being
a
Member of Selection Committee, that too
in the capacity of Subject Expert can be
penalized
-
The
Chairman
who
is
responsible for all misdeeds has been
exonerated by the Government of India,
but a person who has been nominated as
subject expert has been punished for the
mistake committed
by
the
Chairman
which amounts to hostile discrimination
and violation of Articles 14 and 15 of the
Constitution - Since there is no role of the
respondent No.1/petitioner to appoint the
candidates and the inquiry conducted by
the department is wholly unfounded, we
are of the firm opinion that setting aside
of the impugned punishment order by the
learned
Single
Judge
is
wholly
in
consonance with law. (Para 63, 64 and
69)

B. Service Law - UP Government Servant
Criterion for Recruitment by Promotion
Rules, 1994 - Rule 4 - Promotion -
Additional Cane Officer - Criteria of
promotion
-
Principle
of
merit
-
Applicability - How far seniority has
significance - Writ court directed for
holding review Departmental Promotion
Committee (D.P.C.) - Validity challenged -
Held, direction issued by the learned
Single Judge for holding review DPC is not
an emerging necessity and would offend
the principle of merit as prescribed under
Rule 4 of the Rules, 1994 - Any procedure
giving
precedence
to
seniority
as
contemplated under para
11 of the
Government Order would clearly stand
contrary to the essence of merit wherever
it is deciphered on the scale of marks -
High Court rejected the argument of the
respondent/petitioner
that
seniority
would assume the decisive role calling it
fallacious. (Para 81)

Appeal allowed in part. (E-1)

List of cases cited :-

1. Premlata Joshi Vs Chief Secretary, St. of
Uttarakhand & ors.; (2013) 16 SCC 482

2. Manohar Lal (Dead) by LRs. Vs Ugrasen
(Dead) by LRs & ors.; (2010) 11 SCC 557
414 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Bharat Amratlal Kothari Vs Dosukhan
Samadkhan Sindhi; (2010) 1 SCC 234

4. Akella Lalitha Vs Konda Hanumantha Rao &
anr.; 2022 SCC OnLine SC 928

5. UP Power Corporation Limited Vs Ayodhya
Prasad Mishra & anr.; (2008) 10 SCC 139

6. St. of U.P. & ors.Vs Babu Ram Upadhyaya;
AIR 1961 SC 751

7. P.D. Agrawal & ors.Vs St.of U.P. & ors.;
(1987) 3 SCC 622

8. Naga People's Movement of Human Rights Vs
U.O.I.& ors.; AIR 1998 SC 431

9. C. Rangaswamaeah & ors.Vs Karnataka
Lokayukta & ors.; AIR 1998 SC 96

10. U.O.I.& anr.Vs Ashok Kumar Aggarwal;
(2013) 16 SCC 147

11. Government of Andhra Pradesh & ors.Vs P.
Laxmi Devi; (2008) 4 SCC 720

12. B. N. Nagarajan & ors.Vs St.of Mysore &
ors.; AIR 1996 SC 1942

13. The Inspector of Panchayats and District
Collector, Salem Vs S. Arichandran & ors.; 2022
SCC Online SC 1282

14. The St. of U. P. & ors.Vs Rajit Singh; 2022
SCC Online SC 341

15. Chairman, Life Insurance Corporation of
India & ors.Vs A. Masilamani; (2013) 6 SCC 530

16. M. Ramesh Vs U.O.I.; (2018) 16 SCC 195

17. Dinesh Kumar Kashyap Vs South East
Central Railway; (2019) 12 SCC 798

18. St. of U.P. Vs Rajkumar Sharma; (2006) 3
SCC 330

19. Jatinder Kumar Vs St. of Pun.; (1985) 1 SCC
122

20. UPSC Vs M. Sathiya Priya; (2018) 15 SCC
796
(Delivered by Hon'ble Attau Rahman
Masoodi, J.)

(1)

Heard
Sri
Vimal
Kumar
Srivastava, learned Additional Advocate
General assisted by Sri Praful Kumar
Yadav, learned Additional Chief Standing
Counsel
appearing
for
the
applicants/appellants and Sri S.C. Mishra,
learned Senior Advocate assisted by Sri Raj
Kumar Pandey, learned counsel appearing
for the sole respondent on the application
for condonation of delay in Special Appeal
No. 930 (D) of 2003, as the appeal has been
filed beyond time by five days, as reported
by the Office.

(2) Learned Counsel appearing for the
respondents submits that he has no
objection,
if
the
application
for
condonation of delay is allowed.

(3) In view of above, the application
for
condonation
of
delay
(C.
M.
Application No.1 of 2023 moved in Special
Appeal No. 930 (Defective) of 2023 is
allowed and the delay in filing the special
appeal is hereby condoned. Office is
directed to allot regular number to the
appeal.

On the memo of appeals

(4) Heard learned counsel for the
respective parties in both the Special
Appeals.

(5) Special Appeal No. 537 of 2023 is
directed against the judgment and order
dated 31.10.2023 passed in Writ-A No.
4705 of 2023, Dr. Ram Chandra Pathak v.
State of U.P. and others, whereby the writ
petition
filed
by
the
respondent
No.1/petitioner, challenging the inquiry
report dated 05.04.2021 and punishment
order dated 31.05.2023, has been allowed
3 All. Vishwash Kanaujia Vs. Dr. Ram Chandra Pathak & Ors.
415
with a direction to the State-authorities to
hold a review Departmental Promotion
Committee (D.P.C.) for consideration for
promotion of petitioner/respondent No.1
along with appellant/opposite party No.4/in
Special Appeal No. 537 of 2023 on the post
of
Additional
Cane
Commissioner,
Department of Sugar Industries and Cane
Development
ignoring
the
impugned
punishment order dated 31.05.2023.

(6) The State has also filed its Special
Appeal No. 930 (D) of 2023 assailing the
judgment and order dated 31.10.2023
passed in Writ-A No. 4705 of 2023, Dr.
Ram Chandra Pathak v. State of U.P. and
others.

(7) Since both the Special Appeals are
directed against the judgment and order
dated 31.10.2023 passed in Writ-A No.
4705 of 2023, they are being decided by a
common judgment and for the purpose of
disposal, the contents made in Special
Appeal No. 537 of 2023 are being
considered.

BRIEF FACTS

(8) The case has chequered history.
The respondent No.1/petitioner (Dr. Ram
Chandra Pathak) in Special Appeal No. 537
of 2023 had joined the services on the post
of District Cane Officer on 01.01.1999 and
later on he was promoted on the post of
Deputy Cane Commissioner in the year
2012 and on the post of Joint Cane
Commissioner in the year 2015.

(9) While he was discharging his
duties
on
the
post
of
Joint
Cane
Commissioner,
vide
order
dated
20.09.2015, respondent No.1/ petitioner
was sent on deputation as Chief Cane
Development Officer to the U.P. Cooperative Sugar Mills Federation Limited,
Lucknow for five years, whose term came
to an end on 27.09.2020. Thereafter, he was
attached in the aforesaid Office vide order
dated 19.11.2020 till closure of crushing
season 2020-2021 or till issuance of
Government Order, whichever was earlier.

(10) While he was on deputation, the
respondent/petitioner was required to be a
Member of Selection Committee as an
expert alongwith four other members for
selection on the post of Cane Officer. On
the complaints moved by thirteen different
persons alleging irregularities, the State
Government constituted three member
committee for conducting a fact finding
inquiry and the said Committee submitted
its report on 31.07.2017. In the meantime,
in
compliance
of
the
order
dated
19.08.2018 sent by the Ministry of
Agriculture and Farmers Welfare, the
Special
Secretary
sent
his
Examination/Audit report on 20.01.2020.

(11)

Thereafter,
a
departmental/disciplinary proceeding was
initiated
against
the
respondent
No.1/petitioner vide Office Memorandum
dated 04.06.2020. While serving a copy of
the office memorandum on the respondent
No.1/petitioner on 23.06.2020, a copy of
the charge sheet containing six charges, on
the
basis
of
the
alleged
fact
finding/preliminary inquiry report dated
31.07.2017 and the Audit Report dated
20.01.2020 submitted by the Special
Secretary/Vigilance
Officer,
Sugar
Industries
and
Cane
Development
Department, Government of U.P., were
enclosed requiring him to file his reply
within fifteen days from the date of service
of
charge
sheet.
Consequently,
the
respondent No.1/petitioner requested the
General Manager (Complainant/Personnel)
416 INDIAN LAW REPORTS ALLAHABAD SERIES
of Sugar Federation to permit him to peruse
the original documents related to selection
of the post of Cane Officer and provide him
the photocopies of the same. Since the
General Manager (Complainant/Personnel)
did not accede to his request, he had again
requested him by way of a reminder dated
21.09.2020 to provide him the requisite
documents expeditiously in order to file a
reply to the charge sheet. In the meantime,
pursuant to the transfer of Inquiry Officer,
Sri Bachchu Lal, Joint Secretary, Sugar
Industries
and
Cane
Development
Department was appointed as Inquiry
Officer on 13.11.2020. Since nothing was
provided to the respondent No.1/petitioner,
he submitted an inconclusive reply denying
all charges levelled against him to the
Inquiry Officer.
(12) On receipt of reply from the
respondent No.1/petitioner the Inquiry
Officer
had
directed
the
respondent
No.1/petitioner to appear before him on
25.02.2021 at 3.00 P.M. in his chamber for
providing evidence in support of the
charges levelled against him. It was also
mentioned in the said letter that since the
respondent No.1/petitioner denied all the
charges, the proceedings will be held in
accordance with U.P. Government Servant
(Discipline and Appeal) Rules, 1999 and
the Government Order dated 22.04.2015
issued in this regard. Thereafter, the Inquiry
Officer submitted his report on 05.04.2021.

(13) After receipt of letter dated
01.07.2022 alongwith inquiry report dated
05.04.2021, the respondent No.1/petitioner
preferred a letter dated 25.07.2022 to
provide
the
requisite
documents
for
submission of effective reply to the inquiry
report. The same very request was done by
him thrice. Since no heed was paid towards
his request, the respondent No.1/petitioner
while replying to the inquiry report pointed
out
the
irregularities
committed
in
conducting the inquiry denying all the
charges levelled against him. At last, the
disciplinary
authority
culminated
the
proceedings with the passing of order dated
31.05.2023 by withholding five annual
increments with cumulative effect along
with censure entry in his character roll.

(14) Challenging the order dated
31.05.2023, the respondent No.1/petitioner
preferred
his
representation
dated
08.06.2023 that no further meeting of
Departmental
Promotion
Committee
(D.P.C.) be held.

(15) In these circumstances, the
respondent No.1/petitioner filed Writ-A No.
4705 of 2023 which was allowed with
certain directions.

(16) Sri Gaurav Mehrotra, learned
Counsel for the appellant/respondent No.4
has submitted that for promotion to the post
of Additional Commissioner, Department
of Sugar Industries and Cane Development,
the Uttar Pradesh Government Servant
Criterion for Recruitment by Promotion
Rules, 1994 [for the sake of brevity, it is
referred to as 'Rules, 1994'] as amended
from time to time. Rule 4 of the Rules,
1994 provides the criterion for recruitment
by promotion to the post one rank below
the Head of Department, shall be made on
the basis of merit. For ready reference, the
same is reproduced as under:-

"4. Criterion for recruitment by
promotion - Recruitment by promotion
to the post of Head of Department to
post just one rank below the Heads of
Department and to a post in any service
carrying the pay scale the maximum of
which is Rs.18,300/- or above shall be
made on the basis of merit, and to the rest
3 All. Vishwash Kanaujia Vs. Dr. Ram Chandra Pathak & Ors.
417
of the posts in all services to be filled by
promotion
including
a
post
where
promotion is made from a non-gazetted
post to a gazetted post or from one service
to another service, shall be made on the
basis of seniority subject to the rejection of
the unfit."

(17) On 24.06.2023, a Departmental
Promotion
Committee
(DPC)
was
convened for consideration of promotion of
the candidates for the post of Additional
Cane Commissioner. Since the criteria for
promotion on the post of Additional Cane
Commissioner, being the post one rank
below the Head of Department, was merit
as per Rule 4 of the Rules, 1994, the
Annual Confidential Reports (ACRs) of all
such candidates falling within the zone of
eligibility was considered by the DPC on
24.06.2023.

(18) Learned counsel for the appellant
has vehemently submitted that the marks
of the appellant are more than that of the
respondent No.1/petitioner on the basis
of ACRs for the last 10 years. Since the
appellant having scored more marks than
the
respondent
No.1/petitioner
was,
therefore, rightly recommended by the
DPC for promotion on the post of
Additional Cane Commissioner.

(19) Since the post of Additional Cane
Commissioner is just below the post of
Cane Commissioner, the provisions of Rule
4 of Rules, 1994 would be applicable and
the sole criteria is merit. Thus seniority has
no role and it would come into play when
the
appellant/respondent
No.4
and
respondent No.1/petitioner were awarded
equal marks in merit.

(20) In support of his submissions
that the criterion for promotion on the post
in question was merit and it is only when
two candidates have equal marks, the role
of seniority comes into play, he has relied
upon the judgment of Hon'ble Supreme
Court in the case of Premlata Joshi v.
Chief Secretary, State of Uttarakhand and
others [(2013) 16 SCC 482]. Accordingly,
in light of the recommendations made by
the DPC and relying upon the aforesaid
judgment, the appellant/respondent No.4
was promoted vide Office Order dated
12.09.2023.

(21) Learned counsel for the
appellant/respondent
No.4
has
further
submitted that in the writ proceedings, by
way of an amendment application, the writ
petitioner assailed the entire proceedings of
the Departmental Promotion Committee
(DPC) held on 24.06.2023 which was
allowed vide order dated 06.07.2023, but
the learned Single Judge did not interfere
with the recommendation of DPC convened
on 24.06.2023. Since the learned Single
Judge did not interfere with the aforesaid
recommendations, no occasion arises for
issuance of a direction for holding a review
DPC, which was not prayed by the writ
petitioner and as such, the direction given
by the learned Single Judge was beyond the
relief sought by the writ petitioner.

(22) When a party does not pray
for a specific relief, the Courts ought not to
have granted relief. In support of this, he
has relied upon the judgments passed by
the Apex Court in the cases of Manohar
Lal (Dead) by LRs. v. Ugrasen (Dead) by
LRs and others [(2010) 11 SCC 557],
Bharat Amratlal Kothari v. Dosukhan
Samadkhan Sindhi [(2010) 1 SCC 234]
and Akella Lalitha v. Konda Hanumantha
Rao and another [2022 SCC OnLine SC
928].

(23) Further submission of learned
counsel for the appellant is that since the
418 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned judgment is based upon the
findings which are beyond the pleadings
pleaded in the writ petition, the judgment
rendered by the learned Single Judge is
unsustainable on this count alone. More
over, the learned Single Judge has not
returned any finding as to why a direction
for holding review DPC was warranted
when the proceedings of DPC convened
on 24.06.2023 were not quashed. Thus,
no direction to hold DPC could have
been issued by the learned Single Judge
for
considering
the
case
of
the
appellant/respondent
No.4
and
respondent No.1/petitioner.

(24) In the facts and circumstances of
the instant case, the judgment of the Apex
Court in Uttar Pradesh Power Corporation
Limited v. Ayodhya Prasad Mishra and
another [(2008) 10 SCC 139] relied upon
by the writ petitioner is not applicable for
the reason that equals cannot be treated
unequally. But it is equally well settled that
unequals cannot be treated equally. Treating
of unequals as equals would as well offend
the doctrine of equality enshrined in
Articles 14 and 16 of the Constitution of
India. The High Court was, therefore, right
in holding that Executive Engineers placed
in Category I must get priority and
preference for promotion to the post of
Superintendent Engineer over Executive
Engineers found in Category II. Here in
this case, both the appellant and respondent
No.1 were holding the post of Joint Cane
Commissioner
and
were
eligible for
promotion to the post of Additional Cane
Commissioner. Thus, there are no two
categories for applying the observations
made by the Apex Court in the aforesaid
judgment.

(25) Further submission of the learned
counsel for the appellant is that the
Government Order dated 27.09.2019 which
was relied upon by the writ petitioner to
negate the provisions of Rule 4 of Rules,
1994 was neither produced before the
learned Single Judge nor any specific
pleadings were made in the writ petition in
this respect.

(26) In paragraphs 20 to 24 of the
counter affidavit dated 12.07.2023 before
the writ court, the appellant/respondent
No.4 has asserted that since the criteria for
promotion on the post of Additional Cane
Commissioner being the post one rank
below the Head of Department was merit as
per Rule 4 of Rules, 1994, the highest
marks secured by the candidates are
eligible for promotion to the post of
Additional Cane Commissioner. Since the
appellant/respondent No.4 had secured
more marks than the respondent No.1/writ
petitioner, he was rightly recommended by
the DPC for promotion on the said post.

(27) Learned counsel for the appellant
has further submitted that in response to the
aforesaid
specific
contention
of
the
appellant/respondent No.4, the respondent
No.1/petitioner instead of denying the
provisions of Rule 4 of Rules, 1994 has
stated that he was covered by the
Government
Order
dated
27.09.2019
without substantiating the averments. In
absence of any pleading by the respondent
No.1/petitioner
with
regard
to
the
applicability of the Government Order
dated 27.09.2019, no cognizance shall be
taken for the first time at the appellate
stage.

(28) The contention of the learned
Counsel for the appellant is that it is trite
law that the arguments of a litigant as also
findings
cannot
traverse
beyond
the
pleadings and have to be in consonance
3 All. Vishwash Kanaujia Vs. Dr. Ram Chandra Pathak & Ors.
419
with the judgments passed by the Apex
Court as well as by this Court.

(29) Further, he contends that in the
Government
Order
dated
27.09.2019
nowhere merit has been defined. Thus, the
said Government Order is not applicable to
the facts and circumstances of the instant
matter as it supplants the same instead of
supplementing the Rules, 1994.

(30) Elaborating his submissions, he
has emphasized the contents of para - 11 of
the Government Order wherein it has been
provided that on the basis of the provisions
contained in paragraph Nos. 7 (1) to (10) of
the aforesaid Government Order, those
applicants/employees who secure 80 or
above out of 100 marks, would be placed in
the eligible list and to the extent of posts
available, on the basis of their seniority,
such employees would be promoted.
Further such employees who are placed in
the
eligibility
list
would
not
be
discriminated on the basis of merit. For
ready reference, contents of paragraph
No.7(11) of the Government Order dated
27.09.2019 are reproduced hereunder:-

"(11) उपयुाक्त उप प्रस्िर-1 से 10 के आिार पर
100 अांकों मे से 80 अांक का बेन्चमाका वनिााररि करिे हुए 80
या 80 से अविक अांक पाने वाले अभ्यथी/कावमाक को "उपयुक्त"
श्रेणी में वगीकृि करिे हुए, वास्िववक ररवक्तयों की उपलब्ििा की
सीमा िक, उनकी पोर्क सांवगा की वररष्ठिा के क्रम में, चयन सूची
में र्शावमल वकया जायेगा िथा उनकी पोर्क सांवगा की ज्येष्ठिा के
आिार पर उनके पिोन्नवि के आिेर्श वनगाि वकये जायेंगे। ञािव्य हो
वक 'उपयुक्त' श्रेणी में वगीकृि अविकाररयों के मध्य मेररट के आिार
पर कोई ववभेि नहीं होगा। अथााि् चयवनि अविकाररयों का
अविक्रमण (Surpersession) नहीं होगा। 80 अांक से कम
पाने वाले अभ्यवथायों को अनुपयुक्त श्रेणी में वगीकृि वकया जायेगा।

उपयुाक्त के अविररक्त यवि 80 अांक के बेन्चमाका के
आिार पर ररवक्तयों की सांख्या के अनुरूप 'उपयुक्त' श्रेणी में वगीकृि
कावमाक उपलब्ि नहीं हो पािे है,िो चयन सवमवि उक्त 80 अांक के
बेन्चमाका को घटाने हेिु सक्षम होगी।"

(31) He further contends that on
perusal of the aforesaid Government Order
dated 27.09.2019 and more particularly
paragraph No. 7(11), it is evident that
instead of supplementing the Rules, 1994,
it tries to supplant the statutory provisions
that for grant of promotion to the
employees placed in the eligibility list,
'merit would not be decisive factor'.

(32) Further contention of the learned
counsel for the appellant is that since the
contents of paragraph No.7(11) of the
Government Order dated 27.09.2019 are in
the teeth and derogative of the statutory
provisions contained in Rule 4 of the Rules,
1994, the statutory rules cannot be
amended or superseded merely by issuance
of an executive order. In support of this, he
has relied upon the judgments of the Apex
Court in State of U.P. and others v. Babu
Ram Upadhyaya [AIR 1961 SC 751], P.D.
Agrawal and others v. State of U.P. and
others [(1987) 3 SCC 622], Naga People's
Movement of Human Rights v. Union of
India and others [AIR 1998 SC 431] and
C.
Rangaswamaeah
and
others
v.
Karnataka Lokayukta and others [AIR
1998 SC 96].

(33) In the case of Union of India
and another v. Ashok Kumar Aggarwal
[(2013) 16 SCC 147], the Apex Court held
as under:-

"It is settled proposition of law
that an authority cannot issue orders/office
memorandum/executive
instructions
in
contravention of the statutory Rules.
However, instructions can be issued only to
420 INDIAN LAW REPORTS ALLAHABAD SERIES
supplement the statutory rules but not to
supplant it."

(34) The Apex Court in the case of
Government of Andhra Pradesh and
others v. P. Laxmi Devi [(2008) 4 SCC
720] has explained the 'Grundnorm' in the
Indian Constitution and the hierarchy as
under:-

"34. In India the Grundnorm is
the Indian Constitution, and the hierarchy
is as follows :

(i) The Constitution of India;

(ii) Statutory law, which may be
either law made by Parliament or by the
State Legislature;

(iii) Delegated legislation, which
may be in the form of Rules made under the
Statute, Regulations made under the
Statute, etc.;

(iv) Purely executive orders not
made under any Statute;

35. If a law (norm) in a higher
layer in the above hierarchy clashes with a
law in a lower layer, the former will
prevail. Hence a constitutional provision
will prevail over all other laws, whether in
a statute or in delegated legislation or in
an executive order. The Constitution is the
highest law of the land, and no law which
is in conflict with it can survive. Since the
law made by the legislature is in the second
layer of the hierarchy, obviously it will be
invalid if it is in conflict with a provision in
the Constitution (except the Directive
Principles which, by Article 37, have been
expressly made non enforceable).

(35) In a Constitution Bench
judgment of the Apex Court in B. N.
Nagarajan and others v. State of Mysore
and others [AIR 1996 SC 1942] it was held
that if there is a statutory rule or an act on
the matter, the executive must abide by that
act or rule and it cannot, in exercise of
executive power under Article 162 of the
Constitution of India, ignore or act contrary
to that rule or act. Thus, the Government
Order dated 27.09.2019 relied upon by the
writ petitioner do not supplement the Rules,
1994.

(36) Next he has contended that since
the writ petition filed by the writ petitioner
was allowed by the learned Single Judge on
the ground of fallacies in the inquiry report
and not following the procedure for holding
disciplinary proceedings, the matter should
have been remanded to the concerned
authority so that the inquiry could be
conducted afresh from the stage of
furnishing reply to the charge sheet.

(37) Further submission of the learned
Counsel for the appellant is that in the
event of the matter being remitted to the
Disciplinary Authority for holding fresh
inquiry from the point it stood vitiated, the
provisions of Government Order dated
28.05.1997 issued by the Department of
Personnel, Government of Uttar Pradesh
would
come
into
play
and
the
recommendations of the DPC would be
kept in a sealed envelope as the disciplinary
proceedings against the writ petitioner
would still be pending.

(38) The next contention of the
learned Counsel for the appellant is that
while setting aside the punishment order
dated 31.05.2023, liberty was not granted
to the State authorities for proceeding
against the writ petitioner afresh from the
point the inquiry stood vitiated. In support
of this submission, he has relied upon the
cases of The Inspector of Panchayats and
District Collector, Salem v. S. Arichandran
and others [2022 SCC Online SC 1282],
The State of Uttar Pradesh and others v.
3 All. Vishwash Kanaujia Vs. Dr. Ram Chandra Pathak & Ors.
421
Rajit Singh [2022 SCC Online SC 341]
and
Chairman,
Life
Insurance
Corporation of India and others v. A.
Masilamani [(2013) 6 SCC 530].

(39) Lastly, he has submitted that in
the event of the matter being remitted for
holding inquiry afresh from the point it
stood vitiated, the writ petitioner would still
not be entitled for being considered for
promotion on the post of Additional Cane
Commissioner
as
the
disciplinary
proceedings against him would be pending.

(40) Sri Vimal Kumar Srivastava,
learned
Additional
Advocate
General
assisted by Sri Praful Kumar Yadav, learned
Additional
Chief
Standing
Counsel
appearing for the State authorities has
raised a preliminary objection before the
Writ
Court
that
the
respondent
No.1/petitioner
was
having
statutory
alternative remedy to prefer review under
Rule 14 of U.P. Government Servants
(Disciplinary & Appeal) Rules, 1999 and
further he was having an efficacious
remedy of filing a claim petition before the
Tribunal
under
U.P.
Public
Services
Tribunal Act, 1976, but the same has not
been considered by the learned Single
Judge.

(41) The grounds of challenge are that
the learned Single Judge has apparently
exercised his jurisdiction beyond the scope
of judicial review in respect of the
punishment order, which is major in nature
and the learned Single Judge has acted as
an appellate authority over the decision
taken
by
the
disciplinary
authority
inasmuch as the learned Single Judge has
substituted his own findings to the findings
recorded by the Disciplinary Authority by
appreciating the evidence afresh which is
not permissible so far as judicial review of
matters related to disciplinary proceedings
is concerned.

(42) Further ground taken by the
learned Additional Government Advocate
is that once the evidence on record has
been
accepted
by
the
Disciplinary
Authority and the findings returned by the
Disciplinary Authority
in
respect
of
misconduct are supported by evidence
available on record, setting aside the order
of punishment cannot be justified as the
allegations
were
such
amounting
to
misconduct in terms of the provisions of
U.P. Government Servants Conduct Rules,
1956. Lastly, he has submitted that if there
is any flaw in the procedure followed
during the course of conduct of the inquiry,
the punishment order could not have been
set aside; rather, it should have remanded to
the authority concerned for conducting the
inquiry from the stage it stood vitiated.

(43) Per contra, Sri S. C. Mishra,
Senior Advocate assisted by Sri Raj Kumar
Pandey, learned Counsel appearing for the
writ petitioner submits that complaints
were filed by 13 persons against Sri B. K.
Yadav, the then Managing Director and
Chairman of Selection Committee and
appointing authority for the post of Cane
Officers. On the basis of the complaints, a
preliminary inquiry was held by the
Commissioner,
Lucknow
Division,
Lucknow. In the said inquiry, the
respondent
No.1/petitioner
was
not
found guilty, however, Sri B. K. Yadav
was found guilty of five charges. None of
the 13 complainants were ever examined or
produced in the inquiry to press and verify
their status.

(44)

Elaborating
the
above
submissions, he asserted that vide Office
Memorandum dated 29.11.2016, a selection
422 INDIAN LAW REPORTS ALLAHABAD SERIES
committee consisting of five members was
nominated for the post of Cane Officer
wherein the writ petitioner was nominated
as a Subject Specialist and Sri B. K. Yadav
was
a
Chairman
of
the
Selection
Committee.
Sri
B.
K.
Yadav
was
exonerated by the competent authority on
the ground that none of the complaints
were
filed
in
consonance
with
the
guidelines framed in the Government
Orders dated 09.05.1997 and 06.08.2018,
whereas the writ petitioner was served with
a copy of Office Memorandum/charge
sheet dated 04.06.2020 issued by the
Principal Secretary, Sugar Industries and
Cane Development, U.P. for initiation of
disciplinary proceedings against him. In
support of the charge sheet only two
evidences were relied upon - one is the
report
dated
31.07.2017
of
the
Commissioner, Lucknow and the other
report is dated 20.01.2020 of the Special
Secretary/Vigilance
Officer
of
Sugar
Industries
and
Cane
Development
Department. No list of witnesses was given
nor
anyone
was
examined, meaning
thereby both the reports were never got
proved. A perusal of the head note and Para
- 1 (source) column and para - 2 (gist of
allegations) of the said report dated
20.01.2020 itself shows that it was
prepared under the directions of order dated
19.08.2018 of Government of India which
required the State Government to submit a
report in the case of Sri B. K. Yadav as per
the
prescribed
proforma
of
Central
Vigilance Commission, New Delhi for
holding disciplinary inquiry against him as
per the request of Government of India.

(45) He went on submitting that on
the basis of the report of the Commissioner,
Lucknow
Division,
Lucknow
dated
31.07.2017, whereby five charges levelled
against the Chairman of the Selection
Committee were found proved, the State
requested the Government of India to hold
disciplinary inquiry against Sri B. K.
Yadav. It is clear from the report that no
finding was given against the writ
petitioner as all the allegations were
made
against
Sri
B.
K.
Yadav.
Consequently, vide letter dated 14.12.2017
sent by the Principal Secretary, Sugar
Industries to Department of Agriculture and
Farmer's
Welfare
(Administrative
Vigilance Unit), Government of India, New
Delhi seeking disciplinary action against
the then Managing Director Sri B. K.
Yadav who was the Chairman of the
Selection Committee as also the Appointing
Authority of Cane Officers. It is made
clear that both the inquires were held
against Sri B. K. Yadav and not against
the writ petitioner.

(46) In sequence, he has urged that
the writ petitioner was never associated
either in the inquiry conducted by the
Commissioner or in the inquiry of Special
Secretary, Vigilance whose reports have
been relied as evidence. Both the inquiry
officers of inquiry reports were never
produced as witnesses in the inquiry
proceedings to authenticate and prove their
inquiry reports nor named as witnesses. In
the second inquiry held by the Vigilance
Officer of Sugar Industries and Cane
Development Department, objection No.12
refers to the appointment of Cane Officers,
but the allegations were made against the
Chini
Mill
Sangh
Committee
for
appointment of less number of Scheduled
Caste candidates as per the prescribed
quota. Further, it reveals from the report of
Vigilance Officer that the entire inquiry is
based upon some ex parte audit report
conducted by Sri Vishisth Lekha Prativedan
2016-17 Sahkari Evam Lekha Pariksha
3 All. Vishwash Kanaujia Vs. Dr. Ram Chandra Pathak & Ors.
423
Sangathan, but the said report was never
made available to the writ petitioner.

(47) He has pointed out that one Shri
Tulsi
Ram,
Finance
Controller
was
inducted as subject specialist in the
Selection Committee for appointment of
Accounts Officer. When the disciplinary
proceedings were initiated against him, he
was found guilty of charge of backward
class candidates being appointed against
Scheduled Caste quota posts and the
Disciplinary Authority has passed the
punishment
order
dated
13.04.2022
awarding stoppage of one increment and
censure entry in his character roll. When he
approached this Court by filing Writ-A No.
3074 of 2022, vide judgment and order
dated 30.03.2023 the writ petition was
allowed setting aside the order dated
13.04.2022 on the ground of vague charges
having been levelled against him in the
charge sheet. The said order has become
final as it has not been challenged by the
State Government. Since the case of the
writ petitioner is identical to Shri Tulsi
Ram, he should be treated on similar terms.

(48) Further discrimination pointed
out by the learned counsel for the
respondent No.1/petitioner is that there
were nine committees for different posts
and Sri B. K. Yadav was Chairman of all
nine Selection Committees. After obtaining
report
from
the
Central
Vigilance
Commission and no complaints have been
authenticated, Sri B. K. Yadav has been
exonerated by the Government of India on
24.08.2022.

(49) Learned Counsel for the
respondent No.1/petitioner submits that the
selection committee has only recommended
the names of the suitable candidates in
order of their merit in respective categories
to the appointing authority, who is Sri B. K.
Yadav,
Managing
Director
of
the
Corporation and it is the appointing
authority to approve the list and issue
appointment orders following the Rules,
Reservation
Quota
and
Regulations
prescribed in this matter.

(50) Elaborating his submissions,
learned Counsel has submitted that as per
The Uttar Pradesh Co-operative Factories
Federation Limited, Employees Service
Regulations, 1988, the role of the selection
committee is to select the candidates on the
basis of their merit after which list of
selected candidates including the list
containing wait-listed candidates has to be
forwarded to the appointing authority for
appointment and it is the duty of appointing
authority to take the final decision of
appointment
by
following
the
Rules
applicable for selection and appointment.
In the present case, the appointing
authority, Sri B. K. Yadav, has issued all
appointment
letters
to
the
selected
candidates. More over, mere selection does
not give any vested right of appointment
unless he has given appointment letter by
the appointing authority who alone has to
follow the Reservation Rules and other
Rules applicable in this regard and
therefore, the charge that the respondent
No.1/petitioner has violated the reservation
rules and appointed less number of
Scheduled Caste Candidates is perverse.

(51) He further submitted that
the punishment order dated 31.05.2023 has
been passed without application of mind
and
no
independent
findings
agreeing/disagreeing
with
the
inquiry
officer have been recorded by the punishing
authority while passing the order.

(52) Next, he has contended that even
though the inquiry officer has proved only
424 INDIAN LAW REPORTS ALLAHABAD SERIES
one charge pertaining to reservation rules
(charge No.1 and partly charge No.2)
against the respondent No.1/writ petitioner
but the punishing authority has held that
charge No.6 is also proved against the
respondent No.1/petitioner without giving
any reason as to why he is differing from
the view of the inquiry officer because the
punishing authority was to retire on
30.06.2023. Therefore, he hurriedly passed
the order dated 31.05.2023 and thereafter,
he directed for holding Departmental
Promotion
Committee
(DPC)
on
24.06.2023.

(53) It was then submitted that the
promotion
of
the
respondent
No.1/petitioner was due from the post of
Joint Cane Commissioner to the post of
Additional Cane Commissioner for which
Departmental Promotion Committee (DPC)
was constituted earlier which had held its
meeting on 04.08.2022 and the result of
outcome of the Committee was kept in a
sealed cover but on account of impugned
order of punishment dated 31.05.2023, his
promotion could not be issued and the
recommendation lapsed.

(54) His next leg of submission is that
the Special Appeal filed by Shri Vishwash
Kanaujiya, who was impleaded as opposite
party No.4 before the writ proceedings after
his application for impleadment was
allowed in Writ-A No. 4705 of 2023 on the
ground that the writ petitioner has sought
for
quashing
of
proceedings
of
Departmental Promotion Committee (DPC)
held on 24.06.2023 and no order has been
passed against the appellant in the
impugned judgment dated 31.10.2023.
During pendency of writ petition, the
appellant had been promoted on the post of
Additional Cane Commissioner vide order
dated 12.09.2023.

(55) Elaborating submissions on the
maintainability of Special Appeal, learned
counsel appearing for the writ petitioner
has submitted that the learned Single Judge
has only directed to hold a review
Departmental Promotion Committee (DPC)
on
the
post
of
Additional
Cane
Commissioner considering the candidature
of the writ petitioner for the same
alongwith
respondent
No.4/appellant
ignoring the punishment order dated
31.05.2023 which has been quashed by the
learned Writ Court. The said direction of
review DPC has been given as the
recommendation for promotion of the
petitioner was kept in sealed cover in
earlier DPC held on 04.08.2022 and while
holding the subsequent DPC on 24.06.2023
the candidature of the writ petitioner for
promotion has been rejected only on
account of the punishment order dated
31.05.2023.

(56)

The
contention
of
the
appellant/opposite party No.4 is that the
criteria of promotion is merit which cannot
be ground of challenge of the impugned
judgment inasmuch as in the review DPC
which will be held both the incumbents will
be considered as per the relevant Rules and
prevailing guidelines on the basis of which
promotions are made in all Government
Services throughout Uttar Pradesh and
which were followed while holding the
earlier
DPC
dated
04.08.2022
and
24.06.2023. Therefore, there is no occasion
for the appellant/opposite party No.4 to file
special
appeal.
More
over,
the
appellant/opposite party No.4 has no
concern with the inquiry initiated against
the writ petitioner or punishment order as
also the impugned judgment and order
dated 31.10.2023. Thus, he has no locus
standi to challenge the impugned judgment
and order. Further, he has submitted that
3 All. Vishwash Kanaujia Vs. Dr. Ram Chandra Pathak & Ors.
425
whosoever
will
be
suitable for
the
promotion as per the prevailing procedure
in review DPC will be promoted and the
criteria of promotion was not the subject
matter of the writ petition.