# Z.U. Ansari v. The State of U.P. & Ors

- **Citation:** (2014) 2 ILRA 603
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-02-03
- **Case number:** Civil Misc. Writ Petition No.19485 of 2012
- **Bench:** Arun Tandon, Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/z-u-ansari-v-the-state-of-u-p-ors-42840
- **Pages:** 5

## Headnote

C.S.C., Sri Pankaj Saxena.

Civil Services Regulation-351-A-Petitioner
working as Assistant Engineer-retired on
30.09.2008-after three years of retirement
charge sheet on 27.06.2011-without prior
sanction from Governer-defence taken by
604 INDIAN LAW REPORTS ALLAHABAD SERIES
state that since the Minister given approvalhence as per U.P. Secretariat Instruction
1972-shall be deemed to sanction by
Governer-held-not amount to sanction as
contemplated by Regulation 351-A-charge
sheet quashed.

Held: Para-16
We have, therefore, no hesitation to hold
that
the
sanction
of
the
minister
referable to the Business Regulations in
the facts of the case will not amount to
the
sanction
of
the
Governor
as
contemplated by Regulation 351-A of the
Civil Services Regulations, 1975.

Case Law discussed:
(2014)1 SCC 156; 2007(2) UPLBEC 1329; AIR
2004 SC 2523.

## Text

2 All] Z.U. Ansari Vs. The State of U.P. & Ors.
603

"Applying the principles enunciated
in the decision referred to above, it is not
possible to say that for hearing and
deciding any doubt or dispute in regard to
the election of the office bearer of the
petitioner committee it was absolutely
necessary for the Prescribed Authority to
stay the functioning of the committee
pending decision of the reference and
further more so when the proceeding are
summary in nature. The impugned order,
therefore, is liable to be quashed."

14. The Supreme Court in the case
of Morgan Stanley Mutual Fund v.
Kartick Das reported (1994) 4 SCC 225,
has considered the issue whether the
Consumer Dispute Redressal Forum has
power to pass an interim order. The Court
analyzing the provisions of Section 14 of
the Consumer Protection Act, 1986 found
that the said section does not empower the
Tribunal to pass any interim relief.
Paragraph 44 of the judgment reads as
under :-

" A careful reading of the above
discloses that there is no power under the
Act to grant any interim relief of (sic or)
even an ad interim relief. Only a final
relief could be granted. If the jurisdiction
of the Forum to grant relief is confined to
the four clauses mentioned under section
14, it passes our comprehension as to how
an interim injunction could ever be
granted disregarding even the balance of
convenience."

15. In view of the aforestated legal
position, I am of the view, that Prescribed
Authority does not have any power to
pass an interim order.

16. In the present case reference was
made under section 25(1) of the 'Act
1860' by a member. The Prescribed
Authority on the reference itself has
passed an exparte and cryptic order
staying the operation of the order passed
by the Assistant Registrar dated 23.1.2014
and 6.3.2014. In absence of power to
grant an interim order, the order of the
Prescribed
Authority
is
without
jurisdiction. It is liable to be set aside.
Accordingly, it is set aside.

17. Writ petition is allowed.

18. The Prescribed Authority is
directed to decide the Reference in
accordance with law. The order is also
without prejudice to the rights and
contention of the parties.

19. No order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.02.2014

BEFORE
THE HON'BLE ARUN TANDON, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Civil Misc. Writ Petition No.19485 of 2012

Z.U. Ansari ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sawan Kumar Srivastava, Sri Anil Kumar
Srivastava,Sri
Chandrajeet
Tiwari,
V.S.
Tiwari.

Counsel for the Respondents:
C.S.C., Sri Pankaj Saxena.

Civil Services Regulation-351-A-Petitioner
working as Assistant Engineer-retired on
30.09.2008-after three years of retirement
charge sheet on 27.06.2011-without prior
sanction from Governer-defence taken by
604 INDIAN LAW REPORTS ALLAHABAD SERIES
state that since the Minister given approvalhence as per U.P. Secretariat Instruction
1972-shall be deemed to sanction by
Governer-held-not amount to sanction as
contemplated by Regulation 351-A-charge
sheet quashed.

Held: Para-16
We have, therefore, no hesitation to hold
that
the
sanction
of
the
minister
referable to the Business Regulations in
the facts of the case will not amount to
the
sanction
of
the
Governor
as
contemplated by Regulation 351-A of the
Civil Services Regulations, 1975.

Case Law discussed:
(2014)1 SCC 156; 2007(2) UPLBEC 1329; AIR
2004 SC 2523.

(Delivered by Hon'ble Arun Tandon, J.)

1. Petitioner before Court seeks
quashing of the charge-sheet dated
27.06.2011 issued by the Enquiry Officer
under letter dated 28.07.2011 with the
approval of the Principal Secretary, Rural
Engineering
Services.
Petitioner
has
prayed for payment of his entire retiral
dues along with interest.

2. Facts in short leading to the
petition are as follows :

3. Petitioner before this Court was
employed as Assistant Engineering in the
Rural Engineering Department of the
State of U.P. He attained the age of
superannuation on 30.09.2008. After
more than three years of his retirement, a
charge-sheet dated 27.06.2011 has been
served upon the petitioner along with
covering letter dated 28.07.2011. The
charge-sheet has been signed by the
Junior Engineer (Western Region) Rural
Engineering Department in his capacity as
Enquiry Officer. It is his case that in view
of Regulation 351-A read with 370 of
Civil Services Regulations, departmental
enquiry against the petitioner cannot be
instituted/continued without the sanction
of the Governor. In the facts of the case,
no sanction from the Governor has been
obtained, the charge-sheet after more than
three years subsequent to his retirement is
bad.

4. On behalf of the respondent
authorities a counter affidavit has been
filed and it has been stated in paragraph 9
that before initiating the departmental
proceedings against the petitioner with the
service of charge-sheet dated 27.06.2011,
approval of the minister of the department
had been obtained on 07.01.2011 and this
according to the respondents would be
deemed to be the sanction referred to
under Article 351-A of the Governor
having regard to the provisions of the
U.P. Secretariat Instructions 1982 framed
under the Rules of Business, 1975.

5. Counsel for the respondents has
placed reliance upon the judgment of the
Apex Court in the case of State of Orissa
vs. Kanhu Charan Majhi reported in
(2014) 1 SCC, 156, specifically paragraph
12.

6. On behalf of the petitioner in
rejoinder affidavit it is submitted that the
judgment is clearly distinguishable in the
facts of the case having regard to the specific
language of Civil Services Regulations
which have been framed under Article 309 of
the Constitution of India, therefore, statutory
in nature. The Rules of Business, 1975 have
been framed under Article 156 of the
Constitution of India and they deals with the
executive decisions of the State Government
which are completely foreign to the service
rules framed under Article 309 of the
Constitution of India.
2 All] Z.U. Ansari Vs. The State of U.P. & Ors.
605

7. We have heard learned counsel
for the parties and have examined the
records of the present petition.

8. It is not in dispute that the petitioner
had retired in the year 2008 and that
departmental proceedings have been initiated
against him in the year 2011 i.e. after expiry
of three years subsequent to his retirement. It
is also not in dispute that under Regulations
351-A of the Civil Services Regulations
framed under Article 309 of the Constitution
of India for any departmental enquiry being
initiated against a retired employee, prior
sanction of the Governor is but necessary.
The issue in that regard has been settled by
the High Court in the case of State of U.P.
vs.
R.C.Mishra
reported
in
2007(2)
UPLBEC, 1329 wherein Regulation 351-A
had been taken note of. It has been laid down
that once the government servant has retired
and no proceedings have been earlier
initiated then the limitations imposed by sub
clause (i) or sub-clause (ii) of clause (a) of
proviso to Regulation 351-A will apply.

9. We may also record that under
Explanation A to Article 351-A, it has
been explained that the departmental
proceedings against a retired employee
shall be deemed to have been instituted
when a charge framed against the person
concerned is issued to him.

10. It is therefore, clear that as per
Regulations
351-A
of
Civil
Services
Regulations, the departmental enquiry would
be deemed to have been instituted on the date
charge-sheet is served upon the petitioner i.e.
in the year 2001. The petitioner had neither
been placed under suspension nor any
charge-sheet has been served upon him while
he was in service. Therefore, in the facts of
the case, it has to be determined as to
whether any sanction from the Governor has
been obtained or not.

11. It is admitted on record that there is
no order of the Governor sanctioning the
departmental proceedings. The stand taken
by the State before us is that since the
minister of the department had granted
approval to the initiation of the departmental
proceedings vide order dated 07.01.2011,
this order of the minister read with Chapter 7
of U.P. Secretariat Instructions, 1972 framed
under the Rules of Business, 1975 has to be
deemed to be the sanction of the Governor.
In support of this contention the State has
placed reliance upon paragraph 12 of the
judgment in the case of State of Orissa vs.
Kanhu Charan Majhi (supra). Paragraph 12
reads as follows :

"We have considered the provisions of
Rule 31 of the Rules, whereby power has
been given to the Governor to review the
order dated 16.10.1995. Now the question is
whether the order was passed by the
Governor. It is true that when any statute
empowers the Governor to pass an order,
the Governor himself need not sign and
need not pass the order. The rules of
business of any particular State deal with
the procedure as to how an order is to be
passed by the Governor or in the name of
the Governor. In the instant case, the order
dated 04.09.2000 was passed by the UnderSecretary, Food Supplies and Consumer
Welfare Department of the Government of
Orissa. According to Rules 11 and 12 of the
Orissa Government Rules of Business, an
Under-Secretary is empowered to sign in
the name of the Governor. Thus, in view of
said legal position, the order dated
04.09.2000 can be said to have been passed
by the Governor, exercising power under
Rule 31 of the Rules."
606 INDIAN LAW REPORTS ALLAHABAD SERIES

12. We may record that the provisions
of the Regulations 351-A of the Civil
Services Regulations have been framed
under Article 309 of the Constitution of India
and are statutory in nature. The legal position
in that regard is well settled. Reference in
that regard may be had to the judgment of the
Apex Court in the case of Inder Parkash
Gupta vs. State of Jammu & Kashmir and
others reported in AIR 2004 SC, 2523
paragraph n28 wherein it has been laid down
as follows :

28. The Jammu & Kashmir Medical
Education (Gazetted) Services Recruitment
Rules, 1979 admittedly were issued under
Section 124 of the Jammu and Kashmir
Constitution which is in pari material with
Article 309 of the Constitution of India. The
said Rules are statutory in nature. The Public
Service Commission is a body created under
the Constitution. Each State constitutes its
own Public Service Commission to meet the
constitutional requirement for the purpose of
discharging its duties under the Constitution.
Appointment to service in a State must be in
consonance
with
the
constitutional
provisions and in conformity with the
autonomy and freedom of executive action.
Section 133 of the Constitution imposes duty
upon the State to conduct examination for
appointment to the services of the State. The
Public Service Commission is also required
to be consulted on the matters enumerated
under Section 133. While going through the
selection process the Commission, however,
must scrupulously follow the statutory rules
operating in the field. It may be that for
certain purposes, for example, for the
purpose of shortlisting, it can lay down its
own procedure. The Commission, however,
must lay down the procedure strictly in
consonance with the statutory rules. It cannot
take any action which per se would be
violative of the statutory rules or makes the
same inoperative for all intent and purport.
Even for the purpose of shortlisting, the
Commission cannot fix any kind of cut-ff
marks.?

13. So far as the Rules of Business,
1975 are concerned, it is admitted to the
State that these rules have been framed
under Article 166 of the Constitution of
India. Article 166 of the Constitution of
India
deals
with
the
conduct
of
government business and provides that all
executive actions of the Government/State
shall be expressed to be taken in the name
of the Governor and it is with reference to
these actions of the State Government that
a power has been conferred upon the
Governor to frame the business rules.
Article 166 of the Constitution of India
reads as follows :

"Article 166-- (1) All executive
action of the Government of a State shall
be expressed to be taken in the name of
the Governor.

(2) Orders and other instruments
made and executed in the name of the
Governor shall be authenticated in such
manner as may be specified in rules to be
made by the Governor, and the validity of
an order or instrument which is so
authenticated shall not be called in
question on the ground that it is not an
order or instrument made or executed by
the Governor.

(3) The Governor shall make rules
for the more convenient transaction of the
business of the Government of the State
and for the allocation among Ministers of
the said business insofar as it is not
business with respect to which the
/governor is by or under this Constitution
required to act in his discretion.?
2 All] Hazrat Ali & Ors. Vs. State of U.P. & Ors.
607

14. We are of the considered opinion
that the provisions of Article 309 of the
Constitution of India operate in a separate
field vis-a-vis the conduct of government
business
under
Article
166
of
the
Constitution of India. They are not
overlapping. Therefore, if under the service
rules framed under Article 309 of the
Constitution of India namely the Civil
Services Regulations, 1975, it has been
provided that sanction of the Governor
would be necessary before initiation of the
departmental proceedings with the service of
the charge sheet upon the retired employee
then such sanction has to be that of the
Governor and not of the minister with
reference to the U.P. Secretariat Instructions
1982 framed under the Rules of Business,
1975. We may also record that the U.P.
Secretariat Instructions 1982, Chapter VII
only provide that all business allocated to a
department under the Rules of Business,
1975 is to be disposed of by or under the
General or special directions of the minister
in charge (Reference Business Regulations
3). It is, therefore, clear that only such
business as allocated to the department under
the Rules of Business, 1975 can be disposed
of under the general or special directions of
the minister in charge.

15. Nothing has been demonstrated
before us to lead us to accept that the power
to sanction the departmental proceedings in
respect of a retired government servant has
been allocated as a business to be disposed of
under the general or special directions of the
minister concerned under the Business
Regulations.

16. We have, therefore, no hesitation
to hold that the sanction of the minister
referable to the Business Regulations in
the facts of the case will not amount to the
sanction of the Governor as contemplated
by Regulation 351-A of the Civil Services
Regulations, 1975.

17. So far as the judgment relied
upon by the counsel for the respondent in
the case of State of Orissa (Supra), we
may record that the same is clearly
distinguishable in the facts of the case
specifically with reference to the Rules of
Business, 1975 of the State of U.P.
referred to by us.

18. In absence of sanction of the
Governor, no departmental proceedings can
be initiated against a government servant after
his retirement, the impugned charge-sheet
cannot be legally sustained. Accordingly, the
charge-sheet dated 27.06.2011 is hereby
quashed as also the departmental proceedings
initiated thereto against the petitioner. The
petitioner shall be entitled to all the
consequential benefits with the result of the
quashing of the charge-sheet and the
departmental proceedings. The State is
directed to take appropriate action in that
regard within two months from the date a
certified copy of the order is served upon the
State Government.

19. Writ petition is allowed subject
to the observations/direction made herein
above.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.04.2014

BEFORE
THE HON'BLE DR. DHANANJAYA
YESHWANT CHANDRACHUD, C J.
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No.20434 of 2014

Hazrat Ali & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents