Akhilesh Kumar Dubey v. State of U.P. and Others) whereby the Coordinate Bench of this Court only directe

in Harness Rules in Shri Lal Bahadur Shastri Smarak Vidyalaya Antpur, Hathin, Kannuaj. Thereafter, the petitioner was suspended by an ex-parte order dated 31.12.2011 by the respondent no. 3. Against the ex-parte suspension order dated 31.12.2011, the petitioner filed Civil Misc. Writ Petition No. 19854 of 2012 (Akhilesh Kumar Dubey versus State of U.P. and Others) whereby the Coordinate Bench of this Court only directed to conclude the inquiry within three months. The said inquiry concluded in shape of order dated 14.08.2012 by reinstatement with stoppage of increment which was due from 01.07.2012.

4. On 22.12.2012, the petitioner was again suspended by the respondent no. 3 without giving proper opportunity. In response to the same, the petitioner preferred Civil Misc. Writ Petition No. 19032 of 2013 (Akhilesh Kumar Dubey versus State of U.P. and others) which was disposed of with the direction to conclude the inquiry within three months.

5. After proper and due opportunity to the petitioner and considering the inquiry report, the petitioner was reverted back to initial post and pay vide order dated 28.08.2013 which is under challenge under the present petition.

6. While rebutting the stand well taken up by the petitioner, a detailed counter affidavit has been preferred by the respondent no. 2, through which the charges levelled against the petitioner has been highlighted and justified punishment awarded to the petitioner.

7. While raising the arguments on behalf of the respondent no. 2, learned Standing Counsel specifically questioned the maintainability of the instant writ petition on the ground of alternative remedy available to the petitioner which has been mentioned under Section 7 of the Group D Employees Services Rules, wherein, the specific provision are available for filing Appeal against any punishment order awarded by the disciplinary authority, it has also been submitted that no apparent error of law pointed out by the petitioner while conducting the disciplinary proceedings which culminated into the order dated 28.08.2013.

8. By bare perusal of the order which impugned the present petition, it is crystal clear that the petitioner being the habitual offender of rebutting the charges as levelled against him. The order dated 28.08.2013 has been passed after providing due opportunity to the petitioner at each and every stage and the same has been passed after giving thoughtful consideration over the defence as taken up by the petitioner.

9. There is hardly any ground available which proves that the disciplinary proceedings initiated against the petitioner was having any flaw and as such, on the contrary it is second disciplinary proceedings initiated against the petitioner and the conduct of the petitioner has been approved as unbecoming employee of the Educational Institute.

10. Moreover, it is admitted fact that on behalf of the petitioner no Appeal has been preferred under Section 7 of the Group D Employees Services Rules.

11. In view of the aforementioned facts and circumstances, the writ petition stands dismissed on the ground that no flagrant irregularity or some material injustice appeared to have been done; also the ground of availability of alternative statutory remedy."

3. Aforesaid order was challenged by the petitioner in Special Appeal Defective No.732 of 2023, which was disposed of vide order dated 27.2.2024, whereby the matter was remanded for fresh consideration. For reference, said order is reproduced hereinafter: "In Ref: Delay Condonation Application

1. Heard learned counsel for the parties.

2. Reasons for delay in filing the special appeal have been satisfactorily explained. Delay Condonation Application is consequently allowed.

3. Office is directed to treat the appeal as having been filed within time. Regular Number would be allotted to the appeal. Order on Appeal

1. Petitioner-appellant was a Class-IVth employee in Shri Lal Bahadur Shastri Smarak Vidyalaya Antpur, Hathin, Kannauj, which is a recognized Junior High School. It appears that a claim for promotion to Class-IIIrd post was set up by the appellant, whereunder he was placed under suspension. The disciplinary enquiry concluded with passing of an order dated 28.08.2013, in which the manager of the institution held the charges levelled against the appellant to be proved, and a finding has been returned that it is no longer justifiable to retain the appellant in employment. However, following the principles of natural justice, the appellant has been reinstated on his original post and his appointment as Class-IVth employee is directed to be treated as a fresh appointment. This order was under challenge before the learned Single Judge. Learned Single Judge has dismissed the writ on the ground of alternative remedy in the year 2023.

2. It remains undisputed that the provisions of the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment And Conditions Of Service Of Ministerial Staff And Group 'D' Employees) Rules, 1984 were attracted in the facts of the present case. Rule 21 of the Rules of 1984 provides as under: "Termination of service-No clerk or Group 'D' employee of a recognised school may be discharged or removed or dismissed from service or reduced in rank or subjected to any diminution in emoluments or served with notice of termination of service except with the prior approval in writing of the District Basic Education Officer: Provided that, in the case of schools established and administered by minority referred to in clause (i) of the Article 30 of the Constitution, such an order shall not require the approval of District Basic Education Officer but shall be reported to him."

3. The above provision makes it explicit that without obtaining prior approval of the District Basic Education Officer neither any order of removal nor an order of reversion can be passed against Class-IVth employee. No reduction in the emoluments of such employee can be directed without such approval. No such approval has been referred to or relied upon in the order passed by the manager. This issue goes to the root of the matter and we find that learned Single Judge has not adverted to this crucial aspect of the matter.

4. Learned Single Judge has dismissed the writ petition on the ground of alternative remedy. We do not approve of the view so taken by learned Single Judge inasmuch as the writ petition was entertained in the year 2013, and it would not be prudent to dismiss the writ petition on the ground of alternative remedy after such long lapse of time. We are supported in our view by the judgment of the Hon'ble Supreme Court in the case of Dr. Bal Krishna Agarwal Vs. State of U.P. & others, reported in (1995) 1 SCC 614, wherein following observation has been made in para 10 of the judgment: "Having regard to the aforesaid facts and circumstances, we are of the view that the High Court was not right in dismissing the writ petition of the appellant on the ground of availability of an alternative remedy under Section 68 of the Act especially when the writ petition that was filed in 1988 had already been admitted and was pending in the High Court for the past more than five years. Since the question that is raised involves a pure question of law and even if the matter is referred to the Chancellor under Section 68 of the Act it is bound to be agitated in the court by the party aggrieved by the order of the Chancellor, we are of the view that this was not a case where the High Court should have non-suited the appellant on the ground of availability of an alternative remedy. We, therefore, propose to go into the merits of the question regarding inter se seniority of the appellant and Respondents 4 and 5. We may, in this context, mention that Respondent 4 has already retired in January 1994."

5. We find that writ petition could have been decided on merits on the short question with regard to non adherence of the provision of Rule 21 of the Rules of 1984. This issue has not been examined.

6. In such view of the matter, we do not approve of the view taken by the learned Single Judge to dismiss the writ petition on the ground of alternative remedy. Judgment and order dated

24.03.2023 passed by learned Single Judge is set aside. The writ petition stands restored to its original number. The question as to whether Rule 21 of the Rules of 1984 has been complied with, shall be specifically adverted to by learned Single Judge. We are not deciding the writ, on merits as we find that pleading with regard to non-compliance of Rule 21 is not very specific. Since the petition has remained pending since the year 2013, we request the learned Single Judge to accord priority to the disposal of the present writ petition."

4. Learned counsel for the petitioner reiterated the arguments noted by Division Bench in terms of Rule 21 of the Rules, 1984 and submitted that impugned order does not survive. However, Court is of the opinion that Rule 21 of the Rules, 1984 is in respect of termination from service, whereas in the present case petitioner was reinstated in service with a direction that he shall be treated as a fresh appointee.

5. Learned counsel for the petitioner submitted that aforesaid nature of penalty is neither disclosed nor mentioned in Rule 3 of The Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 under the heading of major penalty which is as under: "Major Penalties (1) Withholding of increments with cumulative effect, (ii) Reduction to a lower post or grade time scale or to a lower stage in a time scale; (iii) Removal from the service which does not disqualify from future employment; (iv) Dismissal from the service which disqualify from future employment. Explanation- The following shall not amount to penalty within the meaning of this rule, namely: (i) Withholding of increment of a Government Servant for failure to pass a departmental examination or for failure to fulfill any other condition in accordance with the rules or orders governing the service; (ii) Stoppage at the efficiency bar in the time scale of pay on account of ones not being found fit to cross the efficiency bar, (iii) Reversion of a person appointed to probation to the service during or at the end of the period of probation in accordance with the terms of appointment or the rules and orders governing such probation. (iv) Termination of the service of a person appointed on probation during or at the end of period of probation in accordance with the term of the service or the rules and order governing such probation."

6. Learned counsel for the petitioner further submitted that even if the charges are proved, punishment awarded to the petitioner is disproportionate.

7. None appears on behalf of Committee of Management despite this matter was taken up ten minutes before lunch and ten minutes after lunch.

8. Learned Standing Counsel has assisted the Court and placed relevant Rules and provisions.

9. I have considered the above submissions and of opinion that by punishment order the petitioner was reinstated in service, however, a further direction that it would be a fresh appointment is not legally sustainable. Not only such nature of punishment was not prescribed, but nature of all allegations are also not very serious which could invite such nature of punishment.

10.According to impugned order, petitioner has not appeared before inquiry committee and since no reply was submitted, therefore, a notice was issued to him on 11.7.2013 to dismiss him from service, wherein certain allegations were also made about his misconduct that he raised his voice and made commotion under the influence of liquor which was replied by the petitioner also but it appears that a copy of inquiry report was not handed over to petitioner and it was simply relied upon by Appointing Authority as well as by Manager which vitiates the due process of inquiry as mentioned under relevant rules and provisions.

11. In the aforesaid circumstances, Court is of the view that due procedure of inquiry was not followed and punishment awarded to petitioner was also disproportionate, therefore, impugned order is interfered to the extent that petitioner shall be treated to be in continuous service since his first appointment.

12. With the aforesaid direction, this writ petition is disposed of. Order Date :- 21.5.2025 SB SANDEEP BHATTACHARYA High Court of Judicature at Allahabad

in Harness Rules in Shri Lal Bahadur Shastri Smarak Vidyalaya Antpur, Hathin, Kannuaj. Thereafter, the petitioner was suspended by an ex-parte order dated 31.12.2011 by the respondent no. 3. Against the ex-parte suspension order dated 31.12.2011, the petitioner filed Civil Misc. Writ Petition No. 19854 of 2012 (Akhilesh Kumar Dubey versus State of U.P. and Others) whereby the Coordinate Bench of this Court only directed to conclude the inquiry within three months. The said inquiry concluded in shape of order dated 14.08.2012 by reinstatement with stoppage of increment which was due from 01.07.2012.

4. On 22.12.2012, the petitioner was again suspended by the respondent no. 3 without giving proper opportunity. In response to the same, the petitioner preferred Civil Misc. Writ Petition No. 19032 of 2013 (Akhilesh Kumar Dubey versus State of U.P. and others) which was disposed of with the direction to conclude the inquiry within three months.

5. After proper and due opportunity to the petitioner and considering the inquiry report, the petitioner was reverted back to initial post and pay vide order dated 28.08.2013 which is under challenge under the present petition.

6. While rebutting the stand well taken up by the petitioner, a detailed counter affidavit has been preferred by the respondent no. 2, through which the charges levelled against the petitioner has been highlighted and justified punishment awarded to the petitioner.

7. While raising the arguments on behalf of the respondent no. 2, learned Standing Counsel specifically questioned the maintainability of the instant writ petition on the ground of alternative remedy available to the petitioner which has been mentioned under Section 7 of the Group D Employees Services Rules, wherein, the specific provision are available for filing Appeal against any punishment order awarded by the disciplinary authority, it has also been submitted that no apparent error of law pointed out by the petitioner while conducting the disciplinary proceedings which culminated into the order dated 28.08.2013.

8. By bare perusal of the order which impugned the present petition, it is crystal clear that the petitioner being the habitual offender of rebutting the charges as levelled against him. The order dated 28.08.2013 has been passed after providing due opportunity to the petitioner at each and every stage and the same has been passed after giving thoughtful consideration over the defence as taken up by the petitioner.

9. There is hardly any ground available which proves that the disciplinary proceedings initiated against the petitioner was having any flaw and as such, on the contrary it is second disciplinary proceedings initiated against the petitioner and the conduct of the petitioner has been approved as unbecoming employee of the Educational Institute.

10. Moreover, it is admitted fact that on behalf of the petitioner no Appeal has been preferred under Section 7 of the Group D Employees Services Rules.

11. In view of the aforementioned facts and circumstances, the writ petition stands dismissed on the ground that no flagrant irregularity or some material injustice appeared to have been done; also the ground of availability of alternative statutory remedy."

3. Aforesaid order was challenged by the petitioner in Special Appeal Defective No.732 of 2023, which was disposed of vide order dated 27.2.2024, whereby the matter was remanded for fresh consideration. For reference, said order is reproduced hereinafter: "In Ref: Delay Condonation Application

1. Heard learned counsel for the parties.

2. Reasons for delay in filing the special appeal have been satisfactorily explained. Delay Condonation Application is consequently allowed.

3. Office is directed to treat the appeal as having been filed within time. Regular Number would be allotted to the appeal. Order on Appeal

1. Petitioner-appellant was a Class-IVth employee in Shri Lal Bahadur Shastri Smarak Vidyalaya Antpur, Hathin, Kannauj, which is a recognized Junior High School. It appears that a claim for promotion to Class-IIIrd post was set up by the appellant, whereunder he was placed under suspension. The disciplinary enquiry concluded with passing of an order dated 28.08.2013, in which the manager of the institution held the charges levelled against the appellant to be proved, and a finding has been returned that it is no longer justifiable to retain the appellant in employment. However, following the principles of natural justice, the appellant has been reinstated on his original post and his appointment as Class-IVth employee is directed to be treated as a fresh appointment. This order was under challenge before the learned Single Judge. Learned Single Judge has dismissed the writ on the ground of alternative remedy in the year 2023.

2. It remains undisputed that the provisions of the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment And Conditions Of Service Of Ministerial Staff And Group 'D' Employees) Rules, 1984 were attracted in the facts of the present case. Rule 21 of the Rules of 1984 provides as under: "Termination of service-No clerk or Group 'D' employee of a recognised school may be discharged or removed or dismissed from service or reduced in rank or subjected to any diminution in emoluments or served with notice of termination of service except with the prior approval in writing of the District Basic Education Officer: Provided that, in the case of schools established and administered by minority referred to in clause (i) of the Article 30 of the Constitution, such an order shall not require the approval of District Basic Education Officer but shall be reported to him."

3. The above provision makes it explicit that without obtaining prior approval of the District Basic Education Officer neither any order of removal nor an order of reversion can be passed against Class-IVth employee. No reduction in the emoluments of such employee can be directed without such approval. No such approval has been referred to or relied upon in the order passed by the manager. This issue goes to the root of the matter and we find that learned Single Judge has not adverted to this crucial aspect of the matter.

4. Learned Single Judge has dismissed the writ petition on the ground of alternative remedy. We do not approve of the view so taken by learned Single Judge inasmuch as the writ petition was entertained in the year 2013, and it would not be prudent to dismiss the writ petition on the ground of alternative remedy after such long lapse of time. We are supported in our view by the judgment of the Hon'ble Supreme Court in the case of Dr. Bal Krishna Agarwal Vs. State of U.P. & others, reported in (1995) 1 SCC 614, wherein following observation has been made in para 10 of the judgment: "Having regard to the aforesaid facts and circumstances, we are of the view that the High Court was not right in dismissing the writ petition of the appellant on the ground of availability of an alternative remedy under Section 68 of the Act especially when the writ petition that was filed in 1988 had already been admitted and was pending in the High Court for the past more than five years. Since the question that is raised involves a pure question of law and even if the matter is referred to the Chancellor under Section 68 of the Act it is bound to be agitated in the court by the party aggrieved by the order of the Chancellor, we are of the view that this was not a case where the High Court should have non-suited the appellant on the ground of availability of an alternative remedy. We, therefore, propose to go into the merits of the question regarding inter se seniority of the appellant and Respondents 4 and 5. We may, in this context, mention that Respondent 4 has already retired in January 1994."

5. We find that writ petition could have been decided on merits on the short question with regard to non adherence of the provision of Rule 21 of the Rules of 1984. This issue has not been examined.

6. In such view of the matter, we do not approve of the view taken by the learned Single Judge to dismiss the writ petition on the ground of alternative remedy. Judgment and order dated

24.03.2023 passed by learned Single Judge is set aside. The writ petition stands restored to its original number. The question as to whether Rule 21 of the Rules of 1984 has been complied with, shall be specifically adverted to by learned Single Judge. We are not deciding the writ, on merits as we find that pleading with regard to non-compliance of Rule 21 is not very specific. Since the petition has remained pending since the year 2013, we request the learned Single Judge to accord priority to the disposal of the present writ petition."

4. Learned counsel for the petitioner reiterated the arguments noted by Division Bench in terms of Rule 21 of the Rules, 1984 and submitted that impugned order does not survive. However, Court is of the opinion that Rule 21 of the Rules, 1984 is in respect of termination from service, whereas in the present case petitioner was reinstated in service with a direction that he shall be treated as a fresh appointee.

5. Learned counsel for the petitioner submitted that aforesaid nature of penalty is neither disclosed nor mentioned in Rule 3 of The Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 under the heading of major penalty which is as under: "Major Penalties (1) Withholding of increments with cumulative effect, (ii) Reduction to a lower post or grade time scale or to a lower stage in a time scale; (iii) Removal from the service which does not disqualify from future employment; (iv) Dismissal from the service which disqualify from future employment. Explanation- The following shall not amount to penalty within the meaning of this rule, namely: (i) Withholding of increment of a Government Servant for failure to pass a departmental examination or for failure to fulfill any other condition in accordance with the rules or orders governing the service; (ii) Stoppage at the efficiency bar in the time scale of pay on account of ones not being found fit to cross the efficiency bar, (iii) Reversion of a person appointed to probation to the service during or at the end of the period of probation in accordance with the terms of appointment or the rules and orders governing such probation. (iv) Termination of the service of a person appointed on probation during or at the end of period of probation in accordance with the term of the service or the rules and order governing such probation."

6. Learned counsel for the petitioner further submitted that even if the charges are proved, punishment awarded to the petitioner is disproportionate.

7. None appears on behalf of Committee of Management despite this matter was taken up ten minutes before lunch and ten minutes after lunch.

8. Learned Standing Counsel has assisted the Court and placed relevant Rules and provisions.

9. I have considered the above submissions and of opinion that by punishment order the petitioner was reinstated in service, however, a further direction that it would be a fresh appointment is not legally sustainable. Not only such nature of punishment was not prescribed, but nature of all allegations are also not very serious which could invite such nature of punishment.

10.According to impugned order, petitioner has not appeared before inquiry committee and since no reply was submitted, therefore, a notice was issued to him on 11.7.2013 to dismiss him from service, wherein certain allegations were also made about his misconduct that he raised his voice and made commotion under the influence of liquor which was replied by the petitioner also but it appears that a copy of inquiry report was not handed over to petitioner and it was simply relied upon by Appointing Authority as well as by Manager which vitiates the due process of inquiry as mentioned under relevant rules and provisions.

11. In the aforesaid circumstances, Court is of the view that due procedure of inquiry was not followed and punishment awarded to petitioner was also disproportionate, therefore, impugned order is interfered to the extent that petitioner shall be treated to be in continuous service since his first appointment.

12. With the aforesaid direction, this writ petition is disposed of. Order Date :- 21.5.2025 SB SANDEEP BHATTACHARYA High Court of Judicature at Allahabad