# Zuhair Alam v. The State of U.P. & Ors

- **Citation:** (2023) 4 ILRA 634
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-21
- **Case number:** Writ-A No. 63364 of 2009
- **Bench:** Saurabh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/zuhair-alam-v-the-state-of-u-p-ors-49991
- **Pages:** 5

## Headnote

A. Service Law - Disciplinary Proceedings
-
Suspension/Termination
-
Maintainability of this petition - The
grievance arising out of service matters
connecting to Madrasa is maintainable
u/Article 226 of the Constitution of India
by way of filing writ petition before the
Hon'ble Court. (Para 13)

B. For imposing the major penalty, it was
mandatory on the part of the respondents
to conduct proper disciplinary proceedings
as
mentioned
in
the
Uttar
Pradesh
Government
Servant
(Discipline
and
Appeal) Rule, 1999. (Para 14)

On the precise query as made before the
learned counsel for the respondents that on
which dates the matter has been posted which
was initiated for conduction of the disciplinary
proceedings against the petitioner, the same
could not be apprised and even there is no
description while framing the counter affidavit
against the grounds of the petition, there is no
description and mention of any dates which took
place
during
the
course
of
disciplinary
proceedings
wherein
the
petitioner
was
warranted to appear but he failed to do so.
Moreover, it has been argued by learned
counsel for the petitioner that only on the basis
of inquiry report which has never been supplied
to the petitioner is brazen in law and the same
4 All. Zuhair Alam Vs. The State of U.P. & Ors.
635
is contrary to the procedure as settled by catena
of judgments by the Apex Court. (Para 11)

The entire matter against the petitioner has
been initiated while constituting the three
Members Committee and no evidence or records
have ever been called from the petitioner while
conducting the inquiry. The inquiry report was
never ever served upon the petitioner and he
has never been given any opportunity for
explaining his defense in respect of the findings
arrived at by the Inquiry Committee. The
Disciplinary Authority without following the
proper
procedure
for
conduction
of
the
disciplinary proceedings directly arrived over the
conclusion only after giving credence to the
report submitted by the Inquiry Committee.
(Para 14)

Writ
petition
allowed.
Directed
reinstatement along with back wages. (E-4)

Precedent followed:

## Text

634 INDIAN LAW REPORTS ALLAHABAD SERIES
select list of candidates of that many
vacancies notified to the Board. The Board
in that event cannot recommend candidates
over and above the vacancies notified. It
follows that the State cannot make more
appointments than the posts notified in the
advertisement.
In
Prem
Singh
vs.
Haryana State Electricity Board15, the
Supreme Court observed as under-

"The selection process by way of
requisition and advertisement can be
started for clear vacancies and also for
anticipated vacancies but not for future
vacancies.
If
the
requisition
and
advertisement are for a certain number of
posts only, the State cannot make more
appointments than the number of posts
advertised...State can deviate from the
advertisement and make appointments on
the posts falling vacant thereafter in
exceptional circumstances only or in an
emergent situation and that too by taking a
policy decision in that behalf."

(Refer: Ashok Kumar vs. Chairman,
Banking Service Recruitment Board16)

44. The learned counsel for the
petitioner failed to show as to how the
impugned Rule 15(f) is unreasonable in the
sense that it is manifestly arbitrary so as to
offend Article 14 of the Constitution.

45. Accordingly, we hold Rule 15(f)
of Rules, 2015, to be constitutionally valid.

46. Having regard to the discussions
hereinabove, the writ petition being devoid
of merit is, accordingly, dismissed.
----------
(2023) 4 ILRA 634
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.03.2023

BEFORE

THE HON'BLE SAURABH SRIVASTAVA, J.

Writ-A No. 63364 of 2009

Zuhair Alam ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rajeev Misra, Sri Hritudhwaj Pratap Sahi, Sri
P.K. Chaurasia, Sri Prashant Kumar Tripathi, Sri
Samarath Singh, Sri Sankalp Narain

Counsel for the Respondents:
C.S.C., Sri O.P. Singh Sikarwar, Sri Purushottam
Mani Tripathi, Sri Vashistha Tiwari

A. Service Law - Disciplinary Proceedings
-
Suspension/Termination
-
Maintainability of this petition - The
grievance arising out of service matters
connecting to Madrasa is maintainable
u/Article 226 of the Constitution of India
by way of filing writ petition before the
Hon'ble Court. (Para 13)

B. For imposing the major penalty, it was
mandatory on the part of the respondents
to conduct proper disciplinary proceedings
as
mentioned
in
the
Uttar
Pradesh
Government
Servant
(Discipline
and
Appeal) Rule, 1999. (Para 14)

On the precise query as made before the
learned counsel for the respondents that on
which dates the matter has been posted which
was initiated for conduction of the disciplinary
proceedings against the petitioner, the same
could not be apprised and even there is no
description while framing the counter affidavit
against the grounds of the petition, there is no
description and mention of any dates which took
place
during
the
course
of
disciplinary
proceedings
wherein
the
petitioner
was
warranted to appear but he failed to do so.
Moreover, it has been argued by learned
counsel for the petitioner that only on the basis
of inquiry report which has never been supplied
to the petitioner is brazen in law and the same
4 All. Zuhair Alam Vs. The State of U.P. & Ors.
635
is contrary to the procedure as settled by catena
of judgments by the Apex Court. (Para 11)

The entire matter against the petitioner has
been initiated while constituting the three
Members Committee and no evidence or records
have ever been called from the petitioner while
conducting the inquiry. The inquiry report was
never ever served upon the petitioner and he
has never been given any opportunity for
explaining his defense in respect of the findings
arrived at by the Inquiry Committee. The
Disciplinary Authority without following the
proper
procedure
for
conduction
of
the
disciplinary proceedings directly arrived over the
conclusion only after giving credence to the
report submitted by the Inquiry Committee.
(Para 14)

Writ
petition
allowed.
Directed
reinstatement along with back wages. (E-4)

Precedent followed:

1. Union of India Vs Mohd. Ramzam Khan, 1990
0 Supreme (SC) 606 (Para 12)

2. St. of U.P. & ors. Vs Mam Chand Tyagi & anr.,
2017 (6) ALJ 460 (Para 12)

3. Mohammad Shoeb Vs St. of U.P. & ors.,
Special Appeal No. 447 OF 2016, decided on
30.08.2017 (Para 12)

4. Alauddin Vs St. of U.P. & ors., 2013 ILR 2 All
851 (Para 13)

Present
petition
challenges
the
termination order dated 25.10.2009,
passed
by
the
Manager
of
the
committee
of
Management
of
the
institution.

(Delivered by Hon'ble Saurabh Srivastava, J.)

1. Heard Sri Samarath Singh, learned
counsel for the petitioner, Sri Purushottam
Mani Tripathi, learned counsel for the
respondent nos.4 and 5 and learned
Standing Counsel for the State-respondent
nos.1 to 3.

2. The present petition has been filed
seeking the following relief:-

"1. Issue a writ order or direction in
the nature of certiorari quashing the
impugned order 25.10.2009 passed by the
Manager of the committee of Management
of the institution (annexure 29 to the writ
petition).

2. Issue a writ order or direction in the
nature of certiorari calling for the records
of the case and quash the resolution dated
25.10.09 passed by the respondent no.4 the
committee
of
Management
of
the
institution.

3. Issue a writ order or direction in the
nature of certiorari calling for the records
of the case and quash the enquiry report
submitted by the respondent no.6 the
Enquiry Committee.

4. Issue a writ order or direction in the
nature of mandamus commanding the
respondents to reinstate the petitioner in
service not to interfere in the peaceful
working of the petitioner as an Assistant
Teacher "Tahtaniya" in Madarsa Darul
Uloom Faize Mohammadi, Hathiagarh,
District Maharajganj and further pay the
salary of the petitioner regularly and
continuously on due dates."

3. It is the case of the petitioner that
he was appointed as an Assistant Teacher
(Tahtaniya) in the institution named as
Darul
Uloom
Faiz-E
Mohammadi,
Hathiagarh Laxmipur, District Maharajganj
vide appointment letter dated 28.03.2004
issued by the Committee of Management of
the Institution, the appointment of the
petitioner was duly approved over the
intimation by the competent authority. The
petitioner sought leave at the behest of
some family function which was going to
be held in respect of marriage of his sister's
daughter but the same has been denied by
636 INDIAN LAW REPORTS ALLAHABAD SERIES
the then Principal which culminated into a
dispute between the petitioner and the
Principal of the Institution, thereafter from
12.11.2008,
the
petitioner
has
been
mentioned in the attendance register as
absent.

4. At the time of formalities which
have been conducted by the respondent
no.3 with regard to release of salary in
respect of each and every employees of the
Institution, the same has been inquired with
regard to the long absence of the petitioner
and only thereafter the Manager of the
Committee
of
Management
of
the
Institution
passed
a
resolution
dated
25.01.2009 proposing the suspension of the
petitioner in contemplation of the inquiry
and the order of suspension was passed
vide order dated 04.02.2009.

5. Having been aggrieved by the order
of
suspension
dated
04.02.2009,
the
petitioner preferred a representation on
07.02.2009 before the respondent no.4 for
revocation of his suspension. Considering
the claim in shape of representation, the
respondent no.4 considered the period as
casual leave, the petitioner again preferred
an application dated 24.02.2009 before the
respondent no.2 for taking suitable action
and requested to transfer the petitioner to
some other institution.

6. On dated 26.02.2009, an Inquiry
Committee comprising of three Members
issued a chargesheet, whereupon the
petitioner submitted his reply on dated
02.03.2009, while filing the reply, certain
charges have been levelled against the
Principal of the Institution by the petitioner
and the same has been addressed to the
respondent no.2 which was taken up for
consideration and the Principal alongwith
the petitioner has been given opportunity to
appear before the respondent no.2 on dated
17.03.2009 for their contentions and
allegations put forward by both of them
against each other, meanwhile certain more
information in shape of documentary
evidences have been put forward by the
petitioner for substantiating the allegations
as levelled upon the Principal of the
Institution, due to failure of attendance, the
next date was fixed by the respondent no.2
i.e. 24.03.2009 for appearance of both the
parties.

7. Being also aggrieved by the order
of
suspension
dated
04.02.2009,
the
petitioner challenged the same by filing
Writ Petition No.15950 of 2009 (Zuhair
Alam Vs. State of U.P. and others) and the
same was dismissed as withdrawn vide
order
order
dated
27.03.2009
and
thereafter, the petitioner also filed Writ
Petition No.24791 of 2009 (Zuhair Alam
Vs. State of U.P. and others) and the same
was finally disposed of vide order dated
14.05.2009 with a specific direction for the
Committee of Management to conclude the
inquiry and bring it to its logical end within
three months from the date of receipt of a
certified copy of the order, subject to full
cooperation
being
extended
by
the
petitioner. For seeking full cooperation of
the
petitioner,
the
Committee
of
Management of the Institution sent letters
dated 04.08.2009 and 08.08.2009 and the
same have been replied by the petitioner
vide letter dated 17.08.2009 through
registered
post
to
the
Manager
of
Committee
of
Management
of
the
institution. Meanwhile, District Minority
Welfare
Officer,
Maharajganj
sent
a
compliance report dated 26.08.2009 in
compliance of the order of this Court dated
14.05.2009 wherein, it was directed that in
case it is found that the terms and
conditions of the suspension order have
4 All. Zuhair Alam Vs. The State of U.P. & Ors.
637
been complied by the petitioner then he
shall be ensured subsistence allowance.
Vide report dated 26.08.2009 submitted by
the District Minority Welfare Officer,
Maharajganj, it is clarified that the
petitioner is entitled for the payment of
subsistence allowance during the period of
suspension. The petitioner made repeated
representations which were appended to the
petition
as
representations
dated
24.09.2009 and 17.10.2009 for seeking
redressal of his grievance.

8. Upon receipt of the report of the
Inquiry Committee pertaining to the matter
of the petitioner, the Committee of
Management of the Institution in its
meeting dated 25.10.2009 proposed to
terminate the services of the petitioner and
in pursuance of the same, the Manger of the
Committee of the Management of the
Institution
passed
an
order
dated
25.10.2009 by which the services of the
petitioner were terminated.

9. After receiving the order of
termination, the petitioner immediately
preferred an application before the District
Minority Welfare Officer, Maharajganj with
a specific stand that he has never been
called for appearing before the three
Members Committee as constituted only
for the purposes of conducting disciplinary
proceedings against the petitioner and as
such, there was hardly any opportunity
afforded to the petitioner for creating any
defense against the charges as levelled
against him. As per the arguments raised by
learned counsel for the petitioner, the
penalty imposed upon the petitioner which
is major in nature, cannot be directly
determined only by way of constituting a
Committee and receiving a report of the
same, moreover it is specific case of the
petitioner that during the course of inquiry,
no evidence has been received or even
called for from the petitioner neither after
finalizing the inquiry, the report of the
inquiry has ever been supplied or served
upon the petition and as such, the
determination and arrival over the decision
in shape of termination, is not maintainable
in the eye of law.

10. Per contra, learned counsel appearing
on behalf of the respondent nos.4 to 6
submitted that the averments made in the
order which impugned the present petition
by way of taking reliance that full
opportunity of hearing has already been
afforded in favour of the petitioner but in
response, he never intended to participate
or
cooperate
with
the
disciplinary
proceedings whatsoever has been initiated
by
the
three
Members
Committee
constituted
by
the
Committee
of
Management. While supporting the order
which impugned the petitioner, learned
counsel for the respondent nos.4 to 6
depends on the narrations as advanced in
shape of counter affidavit as well as
supplementary
affidavit
wherein
the
contents
of
the
petition
have
been
vehemently denied and rebutted on several
grounds and the burden and onus casted
upon the petitioner which culminated into
the
termination
order
due
to
noncooperation and altogether absent from the
disciplinary proceedings.

11. On the precise query as made before
the learned counsel for the respondents that
on which dates the matter has been posted
which was initiated for conduction of the
disciplinary
proceedings
against
the
petitioner, the same could not be apprised
and even there is no description while
framing the counter affidavit against the
grounds of the petition, there is no
description and mention of any dates which
638 INDIAN LAW REPORTS ALLAHABAD SERIES
took place during the course of disciplinary
proceedings wherein the petitioner was
warranted to appear but he failed to do so.
Moreover, it has been argued by learned
counsel for the petitioner that only on the
basis of inquiry report which has never
been supplied to the petitioner is brazen in
law and the same is contrary to the
procedure as settled by catena of judgments
by the Apex Court wherein few of the
leading cases have been referred and taken
shelter of the same.

12. The judgment in the case of
Union of India Vs. Mohd Ramzam Khan
[1990 0 Supreme (SC) 606] is one of
them. The same has been followed by a
Division Bench of this Court in the case of
State of U.P. and others Vs. Mam Chand
Tyagi and another [2017 (6) ALJ 460]
and Mohammad Shoeb Vs. State of U.P.
and 6 others (Special Appeal No.447 of
2016, decided on 30.08.2017).

13.

Sofar
as
the
ground
of
maintainability of this petition as raised by
learned counsel for the respondents, it has
been held by a coordinate Bench of this
Court in Alauddin Vs. State of U.P. and 3
others (2013 ILR 2 All 851) that the
grievance arising out of service matters
connecting to Madrasa is maintainable
under Article 226 of the Constitution of
India by way of filing writ petition before
the Hon'ble Court.

14. After considering the rival
contentions as raised by learned counsel for
both the parties as well as after going
through the different judgments as supplied
by learned counsel for the petitioner along
with the proceedings initiated by the
respondents while conducting the inquiry
and the disciplinary proceedings, the writ
petition is hereby allowed. The impugned
order dated 25.10.2009 is hereby set aside
on the following grounds:-

I. The entire matter against the
petitioner
has
been
initiated
while
constituting the three Members Committee
and no evidence or records have ever been
called from the petitioner while conducting
the inquiry.

II. The inquiry report was never ever
served upon the petitioner and he has never
been given any opportunity for explaining
his defense in respect of the findings
arrived at by the Inquiry Committee.

III. The Disciplinary Authority without
following
the
proper
procedure
for
conduction of the disciplinary proceedings
directly arrived over the conclusion only
after
giving
credence
to
the
report
submitted by the Inquiry Committee.

IV. For imposing the major penalty, it
was mandatory on the part of the
respondents to conduct proper disciplinary
proceedings as mentioned in the Uttar
Pradesh Government Servant (Discipline
and Appeal) Rule, 1999.

15. The respondent no. 4 is directed to
reinstate the petitioner and extend the
benefit of backwages as admissible to him
immediately after receiving a certified copy
of this order.
----------
(2023) 4 ILRA 638
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.03.2023

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ-C No. 8262 of 2023

Smt. Jyoti & Anr. ...Petitioners
Versus
M.A.C.T. Fatehpur & Anr. ...Respondents