# Wasi Ahmad v. State of U.P. & Ors

- **Citation:** (2024) 10 ILRA 327
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-17
- **Case number:** Writ-A No. 3827 of 2023
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/wasi-ahmad-v-state-of-u-p-ors-54647
- **Pages:** 6

## Headnote

A. Service Law - UP Government Servants
(Discipline & Appeal) Rules, 1999 - Rule 7
- GO dated 19.07.2022 & 16.08.2022 -
Enquiry proceeding was kept pending for
five years - Chargesheet issuing authority
and punishing authority is the same
person - Effect - Principle of Natural
justice and Principle of Bias - 'One cannot
be judge in his own case - Applicability -
Held, failure to observe the principle that
no person should adjudicate a dispute
which he/she has dealt with in any
capacity, creates an apprehension of bias
- Entire disciplinary proceedings as well
as the appeal has been decided contrary
to the settled cannons of settled principles
of natural justice and was clearly hit by
the principles of bias . (Para 11 and 13)

B. Maxim 'nemo debet esse judex in
propria causa' - Meaning - No one can be
a Judge in his own cause. (Para 10)

Writ petition allowed. (E-1)

List of Cases cited:

## Text

10 All. Wasi Ahmad Vs. State of U.P. & Ors.
327
Varanasi
through
the
Chief
Judicial
Magistrate, Varanasi by the Registrar
(Compliance).
----------
(2024) 10 ILRA 327
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.10.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-A No. 3827 of 2023

Wasi Ahmad ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Brijesh Kumar

Counsel for the Respondents:
C.S.C.

A. Service Law - UP Government Servants
(Discipline & Appeal) Rules, 1999 - Rule 7
- GO dated 19.07.2022 & 16.08.2022 -
Enquiry proceeding was kept pending for
five years - Chargesheet issuing authority
and punishing authority is the same
person - Effect - Principle of Natural
justice and Principle of Bias - 'One cannot
be judge in his own case - Applicability -
Held, failure to observe the principle that
no person should adjudicate a dispute
which he/she has dealt with in any
capacity, creates an apprehension of bias
- Entire disciplinary proceedings as well
as the appeal has been decided contrary
to the settled cannons of settled principles
of natural justice and was clearly hit by
the principles of bias . (Para 11 and 13)

B. Maxim 'nemo debet esse judex in
propria causa' - Meaning - No one can be
a Judge in his own cause. (Para 10)

Writ petition allowed. (E-1)

List of Cases cited:
1. A.K. Kraipak & ors.. Vs U.O.I.: AIR 1970 SC
150

2. U.O.I.Vs Naseem Siddiqui; 2004 SCC OnLine
MP 678

3. Rattan Lal Sharma Vs Managing Committee,
Dr. Hari Ram (Co-education) Higher Secondary
School & ors.; (1993) 4 SCC 10

4. A. U. Kureshi Vs High Court of Guj.; (2009)
11 SCC 84

5. Ashok Kumar Yadav Vs St. of Har.; (1985) 4
SCC 417

6. Mohd. Yunus Khan Vs St. of U.P.; (2010) 10
SCC 539

(Delivered by Hon'ble Alok Mathur, J.)

1...Heard Sri Brijesh Kumar, learned
counsel for the petitioner and learned
Standing Counsel for the State-respondents.

2. A challenge has been made to the
appellate order dated 14.12.2022 passed by
the opposite party no. 2- Sri Ajay Kumar
Shukla in his capacity as Secretary Election
Anubhag, Lucknow Uttar Pradesh rejecting
the appeal of the petitioner.

3. It has been contended by
counsel for the petitioner that while serving
on the post of Senior Assistant in the Office
of
District
Relation
Officer/District
Magistrate,
Amethi
departmental
proceedings were initiated against the
petitioner and he was placed under
suspension
on
01.09.2017.
The
Sub
Divisional Officer, Gauriganj, District
Amethi was appointed as Enquiry Officer.
The said Enquiry Officer was, in the
meanwhile, transferred and on 11.6.2018,
the Deputy District Election Officer,
Gauriganj was appointed as the Enquiry
Officer. The Deputy District Election
Officer, Gauriganj also could not conclude
328 INDIAN LAW REPORTS ALLAHABAD SERIES
the enquiry proceedings and he was
replaced by the then Sub Divisional
Officer, Gauriganj. A charge sheet was
submitted on 29.6.2018 and the same was
handed over to the petitioner on 24.7.2018.
According to the petitioner, the chargesheet did not contain any documents as
mentioned therein and, accordingly, he
had requested the respondents to supply all
the documents, which were necessary in
support of the charges levelled in the
charge sheet.

4. The petitioner had replied to the
charge sheet on 13.3.2020 denying the
allegations levelled against him and the
Enquiry Officer concluded enquiry on
1.12.2020 and submitted it to the Chief
Election Officer, Lucknow. The petitioner
was given a show cause notice containing a
copy of the enquiry report on 5.1.2021. In
his reply, the petitioner has stated that
entire enquiry proceedings were conducted
dehors the provisions of the U.P.
Government
Servants
(Discipline
&
Appeal) Rules, 1999 (hereinafter referred
to as the "Rules 1999), inasmuch as
provisions of Rule 7 were also not
followed.
The
disciplinary
authority
rejected the reply of the petitioner and
passed an order for reduction in rank to the
lowest pay of his original post of Junior
Assistant and imposed recovery of Rs.
6,59,487/- from his salary as penalty. Apart
from the above, the difference in the salary
was also forfeited pertaining to the period,
the petitioner was kept under suspension
during the disciplinary proceedings.

5. Being aggrieved by the order of
punishment dated 24.6.2022, the petitioner
preferred an appeal on 15.9.2022 under
Rule 11 of the Rule 1999. In his appeal, he
had submitted that enquiry was conducted
in gross violation of provisions contained
in Rule 7 and in contravention of the
Government Orders dated 19.7.2022 and
16.8.2022 and the petitioner was illegally
continued under suspension for five years
and only 50% of the salary was paid to him
during the said proceedings. The petitioner
being aggrieved by the order of the
punishment, had preferred an appeal, which
has been rejected by means of impugned
order dated 14.12.2022.

6. The main contention raised by
the petitioner with regard to the fact that:-

 (a) Sri Ajay Kumar Shukla is the
authority who had issued the charge sheet
dated 5.1.2021 in his capacity as Chief
Election Officer.

 (b) The punishment order dated
24.6.2022 was also imposed by Sri Ajay
Kumar Shukla in his capacity as Chief
Election Officer, Election Department,
Government of Uttar Pradesh.

 (c) Lastly, Sri Ajay Kumar
Shukla in his capacity as Secretary of
Election Department, Government of Uttar
Pradesh has rejected the appeal of the
petitioner on 14.12.2022.

7. Counsel for the petitioner
submitted that all canons of principles of
natural justice have been violated in the
conduct of enquiry against the petitioner
apart from the fact that the respondents
have acted malafide in keeping the enquiry
proceedings pending for five years and the
person, who had issued the charge sheet is
the same persons, who proceeded to impose
the punishment and rejected the appeal
against the order of punishment. He
submits that the respondents have totally
ignored the provisions of principles of bias
where it is clearly stated that a person
10 All. Wasi Ahmad Vs. State of U.P. & Ors.
329
cannot be a judge of his own cause and the
said
provisions
has
been
adequately
detailed by the Hon'ble Supreme Court in
the case of A.K. Kraipak and others Vs.
Union of India: AIR 1970 SUPREME
COURT 150 . In view of above, he has
submitted
that
entire
disciplinary
proceedings are vitiated and, accordingly,
are liable to be set aside.

8. Learned Standing Counsel has
opposed the writ petition but could not
dispute the aforesaid fact specially that Sri
Ajay Kumar Shukla is the same authority,
who had issued the charge sheet, passed the
punishment order and also decided the
appeal against the order of punishment.

9. In Union of India, Through Its
Secretary, Ministry of Railway . Naseem
Siddiqui, 2004 SCC OnLine MP 678, the
Court held that one of the fundamental
principles of natural justice is that no man
shall be a Judge in his own cause and this
principle in turn consists of seven wellrecognized facets, one of them being 'the
adjudicator shall be impartial and free from
bias' and 'if any one of these fundamental
rules is breached, the inquiry will be
vitiated'. It was also held that a domestic
inquiry must be held by an unbiased person
so that he can be impartial and objective in
deciding the subject matter of the inquiry
and should have an open mind till the
inquiry is completed. IO should neither act
with bias nor give an impression of bias.

10. In Rattan Lal Sharma Vs.
managing Committee, Dr. Hari Ram (Coeducation) Higher Secondary School &
Ors, (1993) 4 SCC 10 , the Supreme Court
held that no one can be a Judge in his own
cause, which is a common law principle
derived from the Latin maxim 'nemo debet
esse judex in propria causa'. In A. U.
Kureshi v. High Court of Gujarat, (2009)
11 SCC 84, the Supreme Court referring to
the said principle held that failure to adhere
to this principle creates an apprehension of
bias on the part of the Judge and referred to
the observations of Justice P.N. Bhagwati
in Ashok Kumar Yadav v. State of
Haryana, (1985) 4 SCC 417, as follows:?

 One of the fundamental principles
of our jurisprudence is that no man can be
a judge in his own cause. The question is
not whether the judge is actually biased or
has in fact decided partially but whether
the circumstances are such as to create a
reasonable apprehension in the mind of
others that there is a likelihood of bias
affecting the decision. If there is a
reasonable likelihood of bias 'it is in
accordance with natural justice and
common sense that the judge likely to be so
biased should be incapacitated from
sitting'. The basic principle underlying this
rule is that justice must not only be done
but must also appear to be done."

11. It was further held that failure
to observe the principle that no person
should adjudicate a dispute which he/she
has dealt with in any capacity, creates an
apprehension of bias on the part of the said
person. Therefore, law requires that a
person should not decide a case in which he
is interested and the question is not whether
the person is actually biased but whether
the circumstances are such as to create a
reasonable apprehension in the minds of
others that there is a likelihood of bias
affecting the decision. In Mohd. Yunus
Khan v. State of Uttar Pradesh (2010) 10
SCC 539, the Supreme Court observed that
existence of an element of bias renders the
entire disciplinary proceedings void and
reiterated
that
apprehension
of
bias
operates as a disqualification for a person
330 INDIAN LAW REPORTS ALLAHABAD SERIES
to act as an adjudicator. Anyone who has
personal
interest
in
the
disciplinary
proceedings must keep himself away from
such proceedings else the entire proceeding
will be rendered null and void. I may quote
an observation of the Supreme Court, as
follows:?

"Principles of natural justice
are to some minds burdensome but this
price - a small price indeed - has to be paid
if we desire a society governed by the rule
of law".

12. In this context, it would be
relevant to refer to a few passages from the
judgment of the Supreme Court in Rattan
Lal Sharma (supra), as follows:?

 "9. In Administrative Law, rules
of natural justice are foundational and
fundamental concepts and law is now well
settled that the principles of natural justice
are part of the legal and judicial
procedures. On the question whether the
principles of natural justice are also
applicable to the administrative bodies,
formerly, the law courts in England and
India had taken a different view. It was
held in Franklin v. Minister of Town and
Country Planning [[1947] 2 All ER 289
(HL)] that the duty imposed on the minister
was merely administrative and not being
judicial or quasi-judicial, the principle of
natural justice as applicable to the judicial
or quasi-judicial authorities was not
applicable and the only question which was
required to be considered was whether the
Minister had complied with the direction or
not. Such view was also taken by the Indian
courts and reference may be made to the
decision of this Court in Kishan Chand
Arora v. Commissioner of Police, Calcutta
[(1961) 3 SCR 135 : AIR 1961 SC 705]. It
was held that the compulsion of hearing
before passing the order implied in the
maxim 'audi alteram partem' applied only
to judicial or quasi-judicial proceedings.
Later on, the law courts in England and
also in India including this Court have
specifically held that the principle of
natural justice is applicable also in
administrative proceedings. In Breen v.
Amalgamated Engineering Union [[1971]
1 All ER 1148 (CA)] Lord Denning
emphasised that statutory body is required
to
act
fairly
in
functions
whether
administrative or judicial or quasi-judicial.
Lord Morris observed (as noted by this
Court in Maneka Gandhi [Maneka Gandhi
v. Union of India, (1978) 1 SCC 248, 285
:(1978) 2 SCR 621] decision) that:

 "We can, I think, take pride in
what has been done in recent periods and
particularly in the field of administrative
law by invoking and by applying these
principles which we broadly classify under
the designation of natural justice. Many
testing problems as to their application yet
remain to be solved. But I affirm that the
area of administrative action is but one
area in which the principles are to be
deployed."

13. In the light of the above, this
Court is of the considered view that entire
disciplinary proceedings as well as the
appeal has been decided contrary to the
settled cannons of settled principles of
natural justice and was clearly hit by the
principles of bias and entire disciplinary
proceedings against the petitioner stands
vitiated and are, accordingly, quashed.

14. Needles to say, it will be open
for the respondents to conduct a fresh
enquiry in accordance with law but
considering the fact that a Senior Officer of
the State Government had proceeded to
10 All. Wasi Ahmad Vs. State of U.P. & Ors.
331
act in such an illegal and arbitrary manner
where he had himself issued a charge
sheet as well as the punishment order and
apart from the above proceeded to decide
the appeal again his own order has acted
contrary to the canons of principle of
natural justice and the conduct of such
Senior Officer of the State Government is
deprecated, as he is required to be well
versed in the basic legal provisions
pertaining to adherence to the principles of
natural justice.

15. In all the three stages the
requirement of law is that Inquiry Officer
has to be different person then the
Disciplinary
Authority
and
Appellate
Authority has to be superior authority who
looks into the correctness of the order
passed by the Disciplinary Authority.

16. It is well known that the errors
if any in the inquiry are to be looked into
by the Disciplinary Authority and the errors
if any in the disciplinary proceedings are to
be looked into by the Appellate Authority.

17. To give a fair hearing under
reasonable opportunity, each of the three
authorities have to be different individuals
inasmuch as, no person can be adjudged in
his own cause.

18. Sri Ajay Kumar Shukla,
have acted himself in all the three
capacities in the present case as lead to
miscarriage of justice and accordingly
the entire disciplinary proceedings stand
vitiated. The entire exercise will have to
be carried out afresh in accordance with
law.

19. Needless to say that such
miscarriage of justice results in huge
loss to the State exchequer where huge
time and energy will be spent by the
senior officials in conduct of the said
inquiry
proceedings.
Therefore,
we
expect that the persons conducting
disciplinary proceedings are supposed to
be well versed with the relevant rules
and law applicable and only thereafter
they should be permitted to conduct
disciplinary proceedings.

20. In this regard the State
Government should ensure that the
persons who are entrusted with the task
of conducting disciplinary proceedings
have adequate knowledge in this regard.

21. The Senior Registrar of this
Court is directed to send a copy of this
order
to
the
Chief
Secretary,
Government of U.P., Lucknow for
necessary orders and compliance.

22. It is the matter of serious
concern considering the manner in which
Sri Ajay Kumar Shukla has acted in the
present case. Accordingly, this Court
is of the view that the paper pertaining
to the present case be placed before the
Chief Secretary for initiating suitable
proceedings against the said officer and
making him accountable for his conduct
as is evident from the manner in which
single handedly he has acted as the
Enquiry Officer, Disciplinary Authority
and the Appellate Authority.

23. Let the necessary order be
passed by him within a period of six weeks
and communicated to this Court through
the Senior Registrar.

24. With the aforesaid directions,
the writ petition is allowed with the cost
of Rs. 25,000/- to be paid by the State
Government.
332 INDIAN LAW REPORTS ALLAHABAD SERIES
25. It is also directed that the
enquiry may be concluded against the
petitioner within a period of three months
form the date a certified copy of this order
is produced before the competent authority.
----------
(2024) 10 ILRA 332
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.10.2024

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Writ-A No. 12611 of 2024
Alongwith
Writ-A No. 11436 of 2024

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

Counsel for the Petitioner:
Vinod Kumar Singh

Counsel for the Respondents:
C.S.C., Sankalp Kumar, Sharad Chandra

A. Service Law - UP Education Service
Section
Commission
Act,
2023
-
Establishment of an unified Commission -
Object - Idea for setting up a unified
commission was due to the difference in the
level of efficiency related to selection by the
above named Commission/Institution, as
the quality of selection of teachers was
affected, there was no uniformity in the
process of selection, timely selection of
teachers was not being done, and there
were several vacant posts of teachers in
various
institutions,
which
adversely
affected the education/training of the
students/trainees in the St.. (Para 6)

B. Service Law - UP Education Service
Section Commission Act, 2023 - Section
31 - Repeal and Saving clause - UP
Secondary Education Service Selection
Board Act, 1982 - C/M had already sent
the requisition to the Board in the year
2019 - Sub-section (2) of Section 31,
which is a non obstante clause, saves all
those
action
taken
and
proceedings
initiated under Act of 1982, and it shall be
deemed to have been done or taken under
the Act of 2023. The saving clause of
Section 31 clearly saves all the action
which were done pursuant to the Act of
1982 - Additional Director did not have the
power to proceed with the single transfer
taking benefit of the proviso to sub-rule (5)
of Rule 28. (Para 18, 19 and 23)

Writ allowed. (E-1)

List of Cases cited:

1. Prashant Kumar Katiyar Vs St. of U.P. & ors..;
2013(1)ADJ 523 (FB)

2. Hari Pal Singh Vs St. of U.P. & ors..; 2016 (8)
ADJ 622

3. Writ A No. 5106 of 2023; Mayashankar Vs St.
of U.P. & ors.. decided on 13.08.2024

(Delivered by Hon'ble Rohit Ranjan
Agarwal, J.)

1.
The
question
which needs
adjudication by this Court, raised through
these two petitions are as to "Whether once
the requisition has been sent by the
Committee of Management to the U.P.
Secondary Education Service Selection
Board (hereinafter referred to as "the
Board") in terms of sub-rule (4) of Rule 11
of U.P. Secondary Education Services
Selection Board Rules, 1998 (hereinafter
called as "Rules of 1998") the post of
Principal in an intermediate institution can
be filled by way of transfer or the senior
most teacher officiating as a Principal is to
continue till a duly selected candidate is
sent by the Board."

2. Further, upon the enactment of
Uttar Pradesh Education Service Section