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Anand Kumar Mishra v/s State of U.P. Thru. Prin. Secy. Medical Education Lko & Others

    For the Petitioner: Srideep Chatterjee, Advocate. For the Respondents: C.S.C., Abhinav Trivedi, Avadhesh Kumar Singh, Baldev Singh, Dr. V.K. Singh, Shubham Tripathi, Advocates.

    Decided On, 10 May 2022

    At, High Court Of Judicature At Allahabad Lucknow Bench

    By, THE HONOURABLE MR. JUSTICE RAJAN ROY

    For the Petitioner: Srideep Chatterjee, Advocate. For the Respondents: C.S.C., Abhinav Trivedi, Avadhesh Kumar Singh, Baldev Singh, Dr. V.K. Singh, Shubham Tripathi, Advocates.



Judgment Text

1. Heard Sri S.K. Kalia, learned Senior Advocate assisted by Sri Srideep Chaterjee, learned counsel for the petitioner, Sri Subham Tripathi, learned counsel for King George Medical University, Lucknow (KGMU). Dr. V.K. Singh, learned counsel for the applicant/complainant seeking impleadment has also been heard.

2. By means of this petition the petitioner has challenged the Government Order dated 02.06.2020 so far as it relates to issuance of directions to the appointing/disciplinary authority of the petitioner for taking appropriate decision with respect to the appointment of the petitioner. It has also been prayed that the petitioner be allowed to work on the post of Head Assistant and be paid regular salary as and when the same falls due.

3. Pleadings have been exchanged.

4. This Court on 18.06.2020 had asked Sri Abhinav Narain Trivedi, learned counsel for the KGMU to file a counter affidavit bringing on record the final decision which may have been taken on the inquiry report submitted by Dr. Abbas Mehndi. It was further ordered that any action taken in the meantime shall abide by further orders/decision in this petition. Subsequently, the matter was taken up on 06.07.2020 when Sri Abhinav Narain Trivedi sought an adjournment and an interim protection was given to the petitioner that till 08.07.2020 no final order shall be passed in the impugned proceedings by the concerned opposite parties, however, the interim order shall not be extended on the next date without hearing unless it is impossible to hear the matter. The interim order has continued since then.

5. The undisputed facts before the Court are that the father of the petitioner was employed as Chowkidar. He died in harness on 30.11.2003. The mother of the petitioner, namely, Manju Mishra who was already employed as Sick Attendant in KGMU itself, submitted an application on 16.12.2003 for providing compassionate appointment to her son i.e., the petitioner. The petitioner also applied for such compassionate appointment on 19.12.2003. The factum of his mother being already employed in KGMU was not mentioned in his application. Even in the application of the mother this fact was not mentioned. He was appointed as Junior Clerk on compassionate basis on probation period of one year on 21.04.2004 with the approval of the Vice Chancellor. His services were confirmed on 27.07.2005 and he was promoted as Senior Clerk on 31.05.2006. He was thereafter promoted as Senior Assistant on 01.09.2010. Thereafter, as a result of cadre restructuring, he was made Head Assistant on 02.01.2015.

6. On 04.07.2018 a complaint was made by an Advocate, namely, Anand Kumar Pandey about the petitioner having secured compassionate appointment illegally by concealing the fact that his mother was already employed in KGMU on the date he was given such compassionate appointment and that she continued to be in such employment. On receipt of such complaint, the Under Secretary, Medical Education Department of the Government of U.P. wrote to the Registrar, KGMU, Lucknow on 20.07.2018 to provide point-wise report on the complaint dated 04.07.2018. On 06.09.2018, a reminder was sent to the Registrar, KGMU by the Government in this regard.

7. On 28.12.2018 the State Government, in response to the letter of Registrar, KGMU dated 26.09.2018 seeking its guidance in the matter of alleged illegal appointment of the petitioner by concealing relevant facts, informed him about Rule 5 of U.P. Recruitment of Dependent of Government Servants (Dying-in-Harness) Rules, 1974 and that the matter be examined and appropriate action be taken by him in his capacity as appointing authority, as per Rules.

8. On 22.02.2019 disciplinary proceedings were initiated against the petitioner and a charge-sheet was issued to him on 22.02.2019 itself with approval of the Registrar. The petitioner submitted his reply on 07.06.2019 inter alia stating therein that he was not aware about the Rule position or legal position on the subject of compassionate appointment, as such, there was no concealment on his part while applying for the same and also that other similar compassionate appointments of same nature have been made of persons whose family members were already employed with KGMU giving nine such names. He submitted supplementary reply on 28.09.2019 denying the application Form (not the letter dated 19.12.2003) relied upon by the opposite parties by saying that it was neither in his writing nor it had been signed by him. On 05.12.2019 an inquiry report was submitted by the Enquiry Officer. The Registrar in its wisdom although he was appointing/disciplinary authority of the petitioner placed the matter before the Vice Chancellor who as per noting dated 14.01.2020 accepted the inquiry report and approved exoneration of the petitioner from the charges levelled against him. The Registrar who was the appointing/disciplinary authority did not pass any final order in the matter.

9. Sri Subham Tripathi, learned counsel for KGMU informed the Court during the course of argument that against any order of punishment or order terminating the services of an employee such as the petitioner, appeal lies before the Vice Chancellor under Statute 14 (iv) of the Chatrapati Shahuji Maharaj Medical University First Statutes, 2011. Thus, the final order was not passed by the appointing/Disciplinary authority but by the appellate authority.

10. On 27.04.2020, the complainant again made a complaint to the State Government whereupon a D.O. letter dated 01.05.2020 was issued to the Registrar, KGMU, Lucknow referring to the earlier order of the State Government dated 28.12.2018 asking him to submit point-wise report on the complaint dated 27.04.2020. On 08.05.2020, the Registrar responded to the letter of the Government mentioning relevant facts including the inquiry report as also new facts which had come to light regarding several other compassionate appointments having been made where family members were already employed in KGMU and also stating that in view of these facts a fresh inquiry had been ordered in respect of such other appointments which were similarly made, and Prof. Abbas Mehndi, Professor, Department of Biochemistry, KGMU had been appointed as the Enquiry Officer. It refers to the approval of the Vice Chancellor dated 19.02.2020 for the aforesaid fresh action and that based on the report, further action shall be taken.

11. On 02.06.2020, the impugned Government Order was issued by the State Government wherein serious objections were raised as to findings of the Enquiry Officer exonerating the petitioner in disregard of Rules of 1974 merely because nine other similar compassionate appointments had been made. The State Government disagreed with the entire exercise as also the report of the Enquiry Officer. It also directed for action against the Enquiry Officer. It also directed the appointing authority/disciplinary authority to take a decision with regard to petitioner's appointment as per Rules. A direction was also issued for completing the inquiry against other similar appointees and taking action as per Rules. It is this Government Order which is impugned.

12. In this context it is not out of place to mention that under Section 42 (1) of the 2002 Act, the First Statutes of the University (KGMU) shall be made by the State Government, by notification, provided that, for so long as the first statutes are not so made, the Statues of the Lucknow University as immediately before the appointed date insofar as they are not so inconsistent with the provisions of this Act, shall, subject to such adaptation and modification whether by way of repeal, amendment or addition, as may be necessary or expedient, as the Statement Government may, by notification provide continue in force, and any such adaptation or modification shall not be called in question. In this context, the Court may refer to Statute 39 of the first Statutes of the Lucknow University as amended in 2001, which reads as under:

“LANGUAGE”

13. The aforesaid statute very clearly provides that if wife or husband of a permanent employee, who dies in harness, is not already employed under the Central Government or any State Government (in which the University is included), a member of his family who is not already employed may be appointed by the management, etc.

14. In view of Section 42 (1) of the 2002 Act Statue 39 of the First Statues of Lucknow University applies for compassionate appointment in KGMU also and there is an embargo in the said provision regarding appointment of a family member of a deceased employee if husband or wife of the deceased is already employed under the Central Government or the State Government, including the University which in this case is the King George Medical University.

15. Statute 39 as quoted hereinabove was inserted in 2001 that is prior to petitioner's appointment in 2004.

16. A similar provision is contained in Rule 5 of the U.P. Recruitment of Government Servant (Dying-in-Harness) Rules, 1974. Said Rule 5 as it existed at the time of petitioner's appointment vide notification dated 20.01.1990 - 5th amendment to Rules 1974 read as under:

"5. Recruitment of a member of the family of the deceased.-(1) In case a Government servant dies in harness after the commencement of these rules and the spouse of the deceased Government servant is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government, one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purposes, be given a suitable employment in Government Service on a post except the post which is within the purview of the Uttar Pradesh - Public Service Commission, in a relaxation of the normal recruitment rules, if such person

(1) Fulfills the educational qualifications prescribed for the post,

(ii) is otherwise qualified for Government service, and

(iii) makes the application for employment within five years from the date of death of the Government Servant:

Provided that where the State Government is satisfied that the time limit fixed for making the application for employment causes undue hardship in any particular case, it may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner.

(2) As for as possible, such an employment should be given in the same department in which the deceased Government Servant was employed prior to his death"

17. Thus, Rule 5 of the 1974 Rules as amended in 1990 also imposes an embargo on compassionate appointment where spouse of the deceased is already employed.

18. The Court was informed about a decision of Executive Council dated 31.08.2004 of the University that the Rules which are applicable to State Government employees will apply to employees of KGMU till it frames its own Rule with the approval of the State Government. Referring to this resolution, it was argued that Rules of 1974 will apply. Although even as per Rule 5 of Rules of 1974 there is an embargo/prohibition in making such appointment if the spouse of the deceased is already employed, the legal basis of this decision appears to be shaky in view of Section 42 (1) of the Act 2002. Moreover, the appointment of the petitioner having been made prior to the decision dated 31.08.2004 i.e., on 21.04.2004, this argument even otherwise is not acceptable. In this case Statute 39 of Lucknow University will apply. Even if Rule 5 of Rules of 1974 were to apply it would not make any difference as it also contains similar embargo, therefore, reference to Rule 5 of Rules of 1974 in the charge-sheet issued to the petitioner or any other document will not by itself enure to his advantage as similar provision is contained in Statute 39 referred hereinabove nor will it prejudice the University.

19. Moreover, the object behind such compassionate appointment is to provide immediate financial assistance to a family which would be in financial distress after death of the bread earner. It is not intended to be a windfall for the family in the sense that there is no such legislative mandate/obligation that even if it has sufficient means to sustain itself and has other family member(s) in employment, even then such appointment has necessarily to be provided. It is not so. It is not as a matter of an indefeasible right.

20. The charge against the petitioner is that at the time of applying for compassionate appointment his mother was already employed as "Aaya" (Sick Attendant) but this fact as also the fact relating to income was concealed and compassionate appointment was obtained by misleading the University.

21. The contention of Sri Kalia was that the State Government did not have any authority/jurisdiction to direct KGMU to act in a particular manner that too after making observations on merits of the charges against the petitioner and findings recorded by the Enquiry Officer, therefore, the Government Order being without jurisdiction is liable to be quashed. In this context, he referred to Section 13 of the U.P. King George Medical University Act, 2002, which has been relied by counsel for opposite parties, to submit that the eventualities and circumstances mentioned therein are not at all attracted in context of the orders passed by the Government as impugned herein, therefore, the said Government Order is not referable to Section 13.

22. Section 13 reads as under:

"13 (1) The State Government shall have the right to cause an inspection to be made by such person or persons. as it may direct, of the University including its buildings, libraries, laboratories, workshops and equipment and also of the examinations teaching and all other works conducted or done by the University or, to cause an inquiry to be made in the like manner in respect of any matter connected with the administration and finances of the University.

(2) Where the State Government decides to cause an inspection or inquiry to be made under sub-section (1), it shall inform the University of the same through the Registrar, and any person nominated by the Executive Council may be present at such inspection or inquiry as representative of the University and he shall have the right to be heard as such:

Provided that no person shall appear, plead or act as legal practitioner on behalf of the University at such inspection or inquiry.

(3) The person or persons appointed to inspect or inquire under sub-section (1) shall have all the powers of a civil court, while trying a suit under the Code of Civil Procedure, 1908, for the purposes of taking evidence on oath and of enforcing the attendance of witnesses and compelling production of documents and material objects, and shall be deemed to be a civil court within the meaning of sections 345 and 346 of the Code of Criminal Procedure, 1973, and the proceedings before him or them shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code.

(4) The State Government shall address the Vice Chancellor with reference to the result of such inspection or inquiry, and the Vice-Chancellor shall communicate to the Executive Council the views of the State Government with such advice as the State Government may offer upon the action to be taken thereon.

(5) The Vice-Chancellor shall then, within such time as the State Government may fix, submit to it a report of the action taken or proposed to be taken by the Executive Council.

(6) If the University authorities do not, within a reasonable time, take action to the satisfaction of the State Government, the State Government may, after considering any explanation which the University authorities may furnish, issue such directions, as it may think fit, and the University authorities shall be bound to comply with such directions.

(7) The State Government shall send to the Chancellor a copy of every report of an inspection or inquiry caused to be made under sub-section (1) and of every communication received from the Vice-Chancellor under sub-section (5), and of every direction issued under sub-section (6), and also of every report or information received in respect of compliance or non compliance with such directions."

23. As far as Section 13 is concerned, there is no doubt that the State Government has a right to cause an inspection to be made by such person or persons, as it may direct, of the University including its buildings, libraries, laboratories, workshops and equipment and also of the examinations teaching and all other works conducted or done by the University or, to cause an inquiry to be made in the like manner in respect of any matter connected with the administration and finances of the University. The provision is quite wide in its scope as to the subject matter of such inquiry considering the use of the words "and all other works conducted or done by the University" and "to cause an inquiry to be made in the like manner in respect of any matter connected with the administration and finances of the University". The term ''administration' used therein has a wide import/meaning so as to include any illegal appointment(s) in the University, but then, as is borne out from the provision such inspection or inquiry as envisaged therein is to be conducted by a person other than one involved in the functioning of the University. If any action is to be taken under Section 13, then entire procedure is provided in the said Section itself. There is nothing on record including the counter affidavit filed by the State Government to show that any such procedure was adopted. For example sub Section (2) of Section 13 says where the State Government decides to cause an inspection or inquiry to be made under sub-section (1), it shall inform the University of the same through the Registrar, and any person nominated by the Executive Council may be present at such inspection or inquiry as representative of the University and he shall have the right to be heard as such. Sub-Section (4) requires addressing of report of such inspection or inquiry to the Vice Chancellor who in turn shall place it before the Executive Council with such advice as the State Government may offer upon the action to be taken thereon. A report of the action taken is to be submitted by the Vice Chancellor to the State Government under sub-Section (5). This procedure has not been followed. Nevertheless, the State Government does have wide powers to get an inspection or inquiry conducted under Section 13 of the 2002 Act and also to issue direction to the University under sub-Section (6) if the University fails to take action and the University authorities are bound to comply with such directions and in this case it had sought a report from the University before issuing the order dated 02.06.2020.

24. It is not out of place to mention that the State Government provides the funds for payment of salary, etc. to the Officers and employees of the KGMU and it also sanctions the posts, therefore, to that extent certainly the State Government has a stake in the running of the Institution and if it finds any illegality in the Institution, certainly it can ask KGMU to act as per the provisions of the Act, Rules, etc. made therein, therefore, even if the Government Order dated 02.06.2020 is not strictly as per the procedure prescribed in Section 13 of the Act of 2002, it cannot be said to be absolutely unfounded or arbitrary and uncalled for in the facts of the case, especially in view of the cryptic noting of the Vice Chancellor dated 14.01.2020 accepting the inquiry report, even if this notice was not brought to the notice of the Government.

25. State Government's anxiety in the matter is understandable but any observation by it on merits of the matter conclusively in the facts of this case should have been avoided as it could prejudice the appointing/ disciplinary authority in taking a final decision and could be perceived by the petitioner as prejudging of the matter, therefore, this aspect needs to be addressed by this Court which shall be done hereinafter.

26. Learned Standing Counsel relied on Section 4 of the 2002 Act. Section 4 on a bare reading of it is not at all attracted.

27. The submission of Sri Kalia, learned Senior counsel that in this case the Government Order needs to be quashed as it is without jurisdiction and rest of the issues should be left to the discretion of the University specially as the Vice Chancellor has already accepted the inquiry report. The show cause notice issued by the Registrar thereafter is on the dictates of the State Government, therefore, though it is not challenged specifically in this petition, it is also unsustainable.

28. On the other hand, Sri Subham Tripathi, learned counsel for the KGMU submitted that the appointment was patently illegal and the fact that the petitioner's mother was already employed in the KGMU itself was not disclosed either by the mother or by the petitioner while seeking compassionate appointment. As regards nine persons, who as alleged by the petitioner, had been similarly appointed, on scrutiny, it was found that there were only four such persons who had been given compassionate appointment even though their family members were already working in the University and services of all these four persons had been terminated. The irony is that while their services have been terminated petitioner continues in service on account of interim order. He says that all these four persons have filed writ petitions before this Court and this Court has dismissed one of the writ petitions bearing Writ A No.755 of 2022; Sumit Kumar Verma vs. State of U.P. and others by a detailed judgment. As regards other persons, writ petitions are still pending.

29. He submitted that reliance placed by the petitioner's counsel on the decision of the Supreme Court in the case of Mohd. Zamil Ahmed Vs. State of Bihar And Others; 2016 (2) ESC 242 (SC), which was the basis for granting interim order in this case, is misplaced, as, in the said case there was no concealment or misrepresentation of material facts. In this regard, he invited the attention of the Court especially to Para 11.1 of the said report.

30. Sri Kalia submitted that, in fact, there was no concealment by the petitioner while seeking compassionate appointment. The form which was being relied upon by the opposite parties and a copy of which has been annexed by the petitioner himself after obtaining it under the Right to Information Act, has neither been filled by the petitioner nor is signed by the petitioner a fact which distinguishes the case of the petitioner from the case of the other four persons in whose case, presumably, the form was signed by them and the column wherein the occupational status of the family members was to be mentioned was either left vacant or was filled incorrectly.

31. The question as to whether petitioner concealed material facts as alleged in the charge-sheet to obtain an illegal compassionate appointment or not is to be judged by the Disciplinary authority.

32. Having considered the matter, this Court is of view that disciplinary authority of the petitioner being the Registrar of the University he should have taken a call on the inquiry report keeping in mind the entire facts and material on record including the Rule position as has been noticed hereinabove and the law on the subject, especially the object for which compassionate appointment is to be made, instead, he very conveniently sent the matter to the Vice Chancellor, who, in fact would be the appellate authority against any order passed by the Registrar in such proceedings. Moreover, the noting of the Vice Chancellor dated 14.01.2020, which is on record, is a cryptic noting which does not disclose any application of the mind to the facts and material on record of the disciplinary proceedings. Most important, the competent authority in this case to take a decision was the Registrar but he has not taken any decision. Therefore, the order/noting of the Vice Chancellor shall not be taken into consideration any further in these proceedings. The fact that it is not under challenge makes no difference as this Court while exercising jurisdiction under Article 226 of the Constitution of India has to do substantial justice.

33. It is the disciplinary authority who has to take a decision on the inquiry report considering the entire material on record in the light of the charges levelled against the petitioner. Disciplinary authority is not bound to accept the inquiry report. He can differ from it entirely or in part. If he differs he has to give reasons for it in writing an then inform the delinquent accordingly informing him about the points of difference with reasons, giving him an opportunity to defend himself. He has to consider the matter independently and objectively in the light of the material on record, the Rules applicable and the law on the subject.

34. The fact that he has to take a decision independently, uninfluenced by anyone, does not mean that he can act whimsically or arbitrarily, ignoring the facts, evidence and Rule. It only means that decision has to be his own, with due and proper application of mind to all material aspects on fact, Rules and law.

35. Having said so this Court cannot ignore provisions of law discussed hereinabove as also the facts of this case. The charge against the petitioner is of having obtained compassionate appointment illegally by concealing the factum of his mother's employment in KGMU, who in fact is still in employment, as also, as alleged, by concealing income of his family. A Writ Court while exercising jurisdiction under Article 226 of the Constitution of India is not to scuttle any such inquiry/proceedings nor to protect any possible illegality, therefore, the proceedings have to be taken by the Registrar to its logical end as envisaged in law.

36. In view of the above, instead of quashing the order of the Government dated 02.06.2020, ends of justice would suffice if it is provided that the impugned Government Order and the observation made therein shall be read and understood by the University as an expression of serious concern in the matter requiring the competent authority to take appropriate decision in the facts of the case and in the light of the Rules applicable and law on the subject, nothing more. It is ordered accordingly. No observation or direction therein shall be treated as conclusive on any of the issues involved regarding which the Registrar, KGMU is to take a decision. This will allay the fears of th

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e petitioner and on the other hand allow the proceedings to go in an independent and objective manner as discussed hereinabove. The impugned Government Order shall only be treated as a communication to the KGMU about its concern in the matter requiring the University authorities to act as per Rules/law. If the University does not act as per law State Government can proceed under Section 13 of the Act 2002. Any observations/directions therein on merits of the issues regarding which the Registrar is competent to take a decision shall not be read by the Registrar, subject to whatever has been stated hereinabove i.e. he will take a considered decision taking into account the entire factual matrix, the Rule position and the law on the subject. 37. It is not out of place to mention that on 10.06.2020 the Registrar of the University issued a show cause notice to the petitioner albeit in pursuance to the Government Order dated 02.06.2020. The Court has perused the said show cause notice which has been filed along with the supplementary affidavit of the petitioner, and even though it is not specifically challenged, nevertheless, as the contents of the show cause notice show detailed reference to the Government Order dated 02.06.2020, therefore, this notice, obviously, as asserted by Sri Kalia, cannot be made the basis for any further action which has to be an independent and objective decision on the part of the Registrar who is the competent authority. Accordingly, this show cause notice shall not be read or proceeded further instead a fresh notice shall be issued by the Registrar as ordered hereinafter. 38. The appointing/disciplinary authority is directed to issue a fresh show cause notice to the petitioner in the light of the relevant rules which may be applicable asking the petitioner to submit his response to the same. Thereafter, considering the response, if any submitted by the petitioner, the appointing/disciplinary authority shall take a final decision in the matter independently and objectively considering the entire facts of the case, material on record (except the noting of the Vice Chancellor dated 14.01.2020), the Rule position i.e., Statute 39 quoted hereinabove, and the law on the subject as may be placed before it, but, ignoring the observations/findings, if any in the impugned Government Order dated 02.06.2020 as to the merits of the matter, which shall not be read at all by the disciplinary authority for this purpose. He shall take decision within two months. 39. If at any stage the appointing authority/disciplinary authority forms an opinion that instead of the proceedings at hand, proceedings for cancellation of appointment are liable to be undertaken based on the material collected, it shall be open for him to proceed accordingly as per law. 40. The application of the applicant seeking impleadment through Dr. V.K. Singh, Advocate is disposed off as he has been heard. 41. The petition is disposed of in the aforesaid terms.
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