# Vivek Kumar Mittal v. State of U.P. and others

- **Citation:** (2010) 3 ILRA 966
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-09-01
- **Case number:** Service Bench No. 3754 of 1993
- **Bench:** D.P. Singh, Vedpal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vivek-kumar-mittal-v-state-of-u-p-and-others-41758
- **Pages:** 4

## Headnote

Constitution of India, Art-226-readwith
Civil
Services
Rules-Rule-351-A-Post
retiral benefits-withheld-on charges of
misconduct and loss to the Depott.-
allegation prior to 4 years-from the date
of retirement-no sanction from Governer
taken-during pendency of writ petitiondelequent
employee
died-even
the
widow of
deceased employee diedenquiry not possible-direction to pay all
amount
to
the
heirs
of
deceased
employee given.

Held: Para 9

In view of the above, at the face of
record, it is apparent that the impugned
chargesheet has been issued without
having prior sanction of the State
Government and secondly, the period
during which the original petitioner is
3 All] Vivek Kumar Mittal V. State of U.P. and others
967
alleged to have caused loss to the
Government, is of four years before the
date of retirement. Accordingly, the
impugned chargesheet seems to have
been issued in violation of provisions
contained in Regulation 351-A of the
Regulations. There is one another aspect
of the matter. During the pendency of
writ petition, the original petitioner died
and is represented by his legal heirs.
Hence also, no inquiry can be instituted
after death of the employee.

## Text

966 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
degree/diploma/certificate
in
LT/B.P.Ed./D.P.Ed./C.P.Ed.
from
Institutions/Universities established by law
situate at place outside the State of Uttar
Pradesh and duly recognized by the NCTE,
from applying either for the Special B.T.C.
Course or B.T.C. Course. Any such
exclusion is illegal. Question No, (a) is
answered, accordingly.

(2) Insofar as Question No.(b) is
concerned, the classification, if any, is
unreasonable and violative of Article 14 of
the Constitution of India. At any rate, the
only ground given by the State Government
for not putting restriction on B.Ed. degree,
and
putting
restriction
on
LT/B.P.Ed./D.P.Ed./C.P.Ed.,
is
not
sustainable in terms of the rules of N.C.T.E.,
as the admission can only be based on merit.

(3) Insofar as Question No.(c) is
concerned, the judgment in Vijay Kumar
Kushwaha (supra) did not answer the issue
of admission to Special B.T.C. Course, but
dealt with the issue of appointment to the
post of Assistant Teacher. Even otherwise,
considering the findings on question nos.(a)
& (b), we will have to hold that the judgment
in Vijay Kumar Kushwaha does not lay
down the correct law.

30.

Reference
is
answered,
accordingly. All judgments to the contrary
are overruled.

31. The Government has issued orders
closing these courses except for those, whose
applications were rejected on the ground that
they
did
not
possess
the
L.T./B.P.Ed./D.P.Ed./C.P.Ed.
from
institutions in U.P. and the matters are
pending before this Court. With respect to
the Special B.T.C. Courses for the years
2004, 2007 or 2008, if the petitioners, whose
petitions are pending, are eligible, they shall
be considered for training for the Special
B.T.C. Courses, which shall be commenced
within a reasonable period.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.09.2010

BEFORE
THE HON'BLE D.P. SINGH, J.
THE HON'BLE VEDPAL, J.

Service Bench No. 3754 of 1993

Vivek Kumar Mittal

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

Counsel for the Petitioner:
Sri G.Beg
Sri Ajay Tiwari
Sri C.B.Pandey
Sri P.K.Srivastava
Sri P.L. Yadav

Counsel for the Respondents:
C.S.C.

Constitution of India, Art-226-readwith
Civil
Services
Rules-Rule-351-A-Post
retiral benefits-withheld-on charges of
misconduct and loss to the Depott.-
allegation prior to 4 years-from the date
of retirement-no sanction from Governer
taken-during pendency of writ petitiondelequent
employee
died-even
the
widow of
deceased employee diedenquiry not possible-direction to pay all
amount
to
the
heirs
of
deceased
employee given.

Held: Para 9

In view of the above, at the face of
record, it is apparent that the impugned
chargesheet has been issued without
having prior sanction of the State
Government and secondly, the period
during which the original petitioner is
3 All] Vivek Kumar Mittal V. State of U.P. and others
967
alleged to have caused loss to the
Government, is of four years before the
date of retirement. Accordingly, the
impugned chargesheet seems to have
been issued in violation of provisions
contained in Regulation 351-A of the
Regulations. There is one another aspect
of the matter. During the pendency of
writ petition, the original petitioner died
and is represented by his legal heirs.
Hence also, no inquiry can be instituted
after death of the employee.

(Delivered by Hon'ble D.P. Singh, J.)

1. Heard learned counsel for the
petitioner, learned standing counsel and
perused record.

2. The petitioner was appointed as
Junior Plant Protection Assistant in the
Department
of
Agriculture,
U.P.
on
13.1.1954. Thereafter, he was promoted on
the post of Deputy Director Plant Protection
and retired from service on 30.11.1990.
According to petitioner's counsel, after
retirement, petitioner moved an application
for payment of post retiral dues. According
to petitioner's counsel, the Chief Accountant
Officer,
Directorate,
Agriculture
Department is competent authority to
release pension and gratuity in accordance
with the Government order contained in
Annexure No.1 to the writ petition but the
pension and gratuity of the petitioner was
not
released
hence
he
submitted
representation to the Director, Agriculture
U.P. on 22.2.1991 contained in Annexure
No.2 to the writ petition followed by
another representation dated 30.5.1991,
contained in Annexure No.3 to the writ
petition.

3. Submission of the petitioner's
counsel is that instead of adjudicating the
controversy with regard to payment of post
retiral dues, chargesheet dated 4.7.1991 was
served on the petitioner along with covering
letter a copy of which has been filed as
Annexure No.4 to the writ petition. After
receipt
of
chargesheet
the
petitioner
submitted letter dated 12.7.1991 to the
inquiry officer in which the petitioner inter
alia pleaded that after retirement, no
proceeding can be held since the charges are
5 years old. The petitioner relied upon the
Regulation 351A of U.P. Civil Service
Regulations (in short the Regulations).
Representation submitted by the petitioner
was followed by another representation
dated 24.9.1991 contained in Annexure
No.6 to the writ petition. Instead of
adjudicating the controversy in the light of
Regulation 351A of the Regulations, by a
letter
dated
23.9.1991
contained
in
Annexure No.7 to the writ petition, the
petitioner was informed with regard to
change of inquiry officer. However, by
subsequent representation dated 29.10.1991
followed by another representation dated
5.9.1992 contained in Annexurer No.9 and
10 to the writ petition, the petitioner again
took stand that no inquiry can be proceeded
against the petitioner.

4. It appears that since the petitioner
failed to receive any response from the
respondents, he approached this Court
under writ jurisdiction under Article 226 of
the Constitution of India challenging the
chargesheet dated 4.7.1991 contained in
Annexure No.4 to the writ petition.

5. From the perusal of the chargesheet
it appears that the petitioner has been
charged on three counts and the charges
relates to the period between 26.7.1983 to
18.7.1986, when the petitioner was posted
as Plant Protection Officer at Meerut. The
allegation against the petitioner is that the
petitioner had caused loss to the State
Government during the period in question.
968 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

6. During the pendency of the writ
petition, the original petitioner left for
heavenly abode on 4.11.2005 and his wife
and children were substituted as legal heirs.
However, later on, petitioner's wife Prem
Lata Misra also died on 2.8.2009. Nor the
original petitioner nor his wife could avail
the benefit of post retiral dues. In pursuance
of the interim order passed by this Court, an
amount of Rs.1,16,000/- was paid to the
petitioner.

7. Regulation 351A of the Regulations
provides that Governor reserves right to
order for recovery of pension of an officer, of
any amount on account of loss, found in
departmental or Judicial proceedings to have
been guilty of grave misconduct or to have
caused pecuniary loss to Government by
misconduct or negligence during his service,
including
service
rendered
on
reemployment
after
retirement.
For
convenience, Regulation 351A of the
Regulations is reproduced as under:

"351-A. The Governor reserves to
himself the right of withholding or
withdrawing a pension or any part of it,
whether permanently or for a specified
period and the right of ordering the recovery
from a pension of the whole or part of any
pecuniary loss caused Government, if the
pensioner is found in departmental or
Judicial proceedings to have been guilty of
grave misconduct, or to have caused
pecuniary loss to the Government by
misconduct or negligence, during his service,
including
service
rendered
on
reemployment after retirement:

Provided that--

(a) such departmental proceedings, if
not instituted while the officer was on duty
either before retirement or during reemployment--

(i)shall not be instituted save with the
sanction of the Governor.

(ii)shall be in respect of an event which
took place not more than four years before
the institution of such proceedings; and

(iii)shall be conducted by such authority
and in such place or places as the Governor
may direct and in accordance with the
procedure applicable to proceedings on
which an order of dismissal from service
may be made.

(b) Judicial proceedings, if not instituted
while the officer was on duty either before
retirement or during re-employment, shall
have been instituted in accordance with subclause (ii) of clause (a); and

(c)the Public Service Commission, U.P.
shall be consulted before final orders are
passed.

[Provided further that of the order
passed by the Governor relates to a cash dealt
with under the Uttar Pradesh Disciplinary
Proceedings,
(Administrative
Tribunal)
Rules, 1947, it shall not be necessary to
consult Public Service commission]."

8. Regulation 351-A empowers the
Government to take action against retired
employee for recovery of damage caused to
the
Government
during
course
of
employment. Condition precedent is that
sanction must be granted by the Governor of
the State and must be within four years of
retirement and not earlier to that. In the
present case, at the face of record, the
incident falls between the period from
26.7.1983 to 18.7.1986. The original
3 All] Sant Ram V The District Inspector of Schools and another
969
petitioner attained the age of superannuation
on 30.11.1990. Thus, on the face of record,
the service period for which the petitioner
had been charged for causing loss to the
Government, relates to the period of four
years before the date of retirement.

9. In view of the above, at the face of
record, it is apparent that the impugned
chargesheet has been issued without having
prior sanction of the State Government and
secondly, the period during which the
original petitioner is alleged to have caused
loss to the Government, is of four years
before the date of retirement. Accordingly,
the impugned chargesheet seems to have
been issued in violation of provisions
contained in Regulation 351-A of the
Regulations. There is one another aspect of
the matter. During the pendency of writ
petition, the original petitioner died and is
represented by his legal heirs. Hence also, no
inquiry can be instituted after death of the
employee.

10. In view of the above the writ
petition is allowed. A writ in the nature of
certiorari is issued quashing the impugned
chargesheet dated 4.7.1991 contained in
Annexure No.4, the order dated 2.2.1993
issued by the Special Secretary, Agriculture
U.P.,
Lucknow,
for
recovery
of
Rs.1,16,188.80,
with
all
consequential
benefits. It has been brought to the notice of
this Court that the wife of the original
petitioner had died on 2.8.2009 and in case,
the writ petition is allowed, the heirs shall be
entitled for arrears of family pension till the
date of death of the wife of the original
petitioner i.e., 2.8.2009. A writ of mandamus
is issued directing the opposite parties to pay
all post retiral dues including regular family
pension in accordance with Rules. A writ in
the nature of mandamus is further issued to
the opposite parties to ensure payment of
arrears of post retiral family pension and pass
orders keeping in view the observations
made hereinabove, within three months from
the date of receipt of the certified copy of this
order. The Principal Secretary, Agriculture,
U.P., shall ensure that a speaking and
reasoned order be passed within aforesaid
period with regard to payment of post retiral
dues and arrears of family pension to the
heirs of the original petitioner.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.07.2010

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 9213 of 1992

Sant Ram

 ...Petitioner
Versus
The District Inspector of Schools, Basti
and another

 ...Respondent

Counsel for the Petitioner:
Sri Raj Kumar Jain
Sri Rahul Jain

Counsel for the Respondents:
C.S.C.

U.P.
High
School
and
Intermediate
(Payment of Salary) Act, 1971/U.P.
Secondary Education Board 1982-Ad-hoc
appointment made without notifying
vacancy in 2 News Paper-view of Full
Bench judgement Kumari Radha Raizada
case subsequently the Apex Court as
well as High Court-such Appointment
made in violation there to illegal and no
benefits could be arrived at.

Held: Para 20, 21 and 22

Lastly, for the same proposition the
judgement
in
the
case
of
"H.C.
Puttaswamy and others Vs. The Hon'ble
Chief Justice of Karnataka High Court,