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Virendra Kumar Mishra v/s State of U.P & Others

    Writ - A No. 18839 of 2016

    Decided On, 20 July 2018

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE PRADEEP KUMAR BAGHEL

    For the Petitioner: Siddharth Khare, Ashok Khare, Manoj Singh Rathaur, Advocates. For the Respondents: C.S.C.



Judgment Text

Pradeep Kumar Singh Baghel, J.

The petitioner has instituted this writ petition for issuance of a writ of certiorari to quash the order dated 19th March, 2016 passed by the Deputy Inspector General of Police, Varanasi Range, Varanasi, the second respondent, dismissing him from service from the post of Sub-Inspector, Civil Police, on the ground that his appointment under the quota of skilled sportsman was illegal.

A brief reference to the factual aspects would suffice. A circular dated 04th October, 1991 was issued by the Uttar Pradesh Police Headquarter, Allahabad for selection in the post of Sub-Inspectors, Civil Police. Pursuant thereto an advertisement was issued inviting applications from the eligible persons for appointment against 475 male and 15 female posts of Sub-Inspectors, Civil Police. Along with the application form a brochure was also supplied to the candidates wherein, apart from other vertical and horizontal reservations, skilled sportsmen were also provided reservation in terms of the Government Order dated 11th February, 1975. The candidates were also eligible for relaxation of five years in upper age limit under the said quota.

The petitioner applied in response to the said advertisement under the unreserved category and sought the benefit of reservation under the category of skilled sportsman. He stood qualified/ eligible in each stage of selection and was finally selected and granted appointment as Sub-Inspector, Civil Police. Having joined the training on 07th January, 1997, the petitioner successfully completed it on 08th February, 1998 and was posted as a Sub-Inspector, Civil Police in District Varanasi on 10th February, 1998.

It appears that some complaints were made in respect of selection of the candidates who were selected in the category of skilled sportsman. Therefore, vide an order dated 18th September, 1998 an enquiry was instituted in respect of the said allegations and the Crime Branch/CID was entrusted to conduct the said enquiry. Pursuant thereto, a first information report1 was registered on 13th May, 1999 as Case Crime No. 461 of 1999, under Sections 193, 196, 218, 465, 467, 468, 471, 120-B I.P.C. read with Section 13(1)(c) & (d) and 13(2) of the Prevention of Corruption Act at Police Station Hazaratganj, District Lucknow.

The petitioner along with some other candidates challenged the said FIR by way of a writ petition, being Criminal Misc. Writ Petition No. 3091 of 1999 (Virendra Kumar Mishra and others v. State of U.P. and others), wherein an interim order was granted by this Court o

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n 07th June, 1999.

Immediately thereafter on 08th June, 1999 the services of the petitioner and other similarly placed persons were terminated treating them as temporary employee under the provisions of the Uttar Pradesh Temporary Government Servants (Termination of Service) Rules, 1975.

Aggrieved by his termination order dated 08th June, 1999 the petitioner preferred a writ petition, being Civil Misc. Writ Petition No. 25106 of 1999 (Birendra Kumar Mishra v. Deputy Inspector General of Police, Varanasi Range Varanasi and others). In the said writ petition an interim order was passed by this Court on 17th June, 1999 staying operation of the termination order dated 08th June, 1999 until further orders. It was also directed that the petitioner shall be continued in service and paid his salary. The said interim order was complied with and the petitioner continued in service.

The other similarly placed Sub-Inspectors of Police, who were also appointed in the category of skilled sportsman, had also challenged their termination order and their writ petitions were clubbed with the writ petition filed by the petitioner. All the said writ petitions were allowed and the termination orders of the petitioners therein were quashed by this Court vide its judgment and order dated 04th January, 2001. However, this Court has also left it open to the respondents to take such decision as may be deemed fit and proper after affording opportunity to the petitioners on the question as to whether they come under the category of skilled sportsman (Kushal Khiladi) so as to get the benefit of sports quota.

After about six months, on 17th June, 2001 the second respondent issued a show cause notice to the petitioner for his dismissal from service on the ground that he is not a skilled sportsman, hence he was not entitled to be appointed in the said category/ quota. The petitioner challenged the said notice by means of Writ Petition No. 3347 (S/S) of 2001 (Virendra Kumar Mishra v. State of U.P. and others), wherein an interim order was granted by this Court at Lucknow on 16th July, 2001.

It is significant to mention that other similarly placed Sub-Inspectors of Police had also preferred separate writ petitions challenging the respective show cause notices issued to them and in their writ petitions also similar interim orders were passed on the same day i.e. 16th July, 2001. The copies of the interim orders passed by this Court at Lucknow Bench in the writ petitions of some other similarly placed persons are on the record as Annexures-28A, 28-B and 28-C to the writ petition.

On 03rd March, 2014 the Court directed the respondents to file an affidavit indicating therein about the compliance of the direction given in the interim order dated 16th July, 2001, wherein it was provided that pending the writ petitions the respondents may pass fresh orders for holding enquiry in accordance with law and pass fresh orders.

It appears that the respondents had not complied with the direction dated 16th July, 2001, but after the order dated 03rd March, 2014 they initiated the departmental proceeding against the petitioner and accordingly, a charge-sheet dated 02nd June, 2014 was issued to the petitioner by the Superintendent of Police, Traffic, Varanasi. The petitioner submitted his detailed reply to the said charge-sheet. In the departmental proceeding the department examined only one witness, namely, Sri Hari Shankar Shukla, a retired Deputy Inspector General of Police.

It is stated in the writ petition that the petitioner had submitted several applications seeking some material documents, which were not supplied to him. The petitioner has also raised the grievance that he was allowed to cross-examine Sri Hari Shankar Shukla, which could not be concluded and later Sri Hari Shankar Shukla never appeared in the departmental proceeding, so the petitioner could not complete his cross-examination.

The enquiry officer submitted a report, wherein it was found that the petitioner was ineligible for consideration in the category of skilled sportsman on the basis of a subsequent Government Order issued in the year 1987. Accordingly, recommendations were made for dismissal of the petitioner from service.

The second respondent issued a show cause notice dated 03rd January, 2016 to the petitioner along with a copy of the enquiry report. The petitioner submitted his detailed reply to the said show cause notice on 09th February, 2016. A copy of his reply is on the record as annexure-22 to the writ petition.

The petitioner has averred in the writ petition that without considering his reply to the show cause notice and the material on the record the second respondent has passed the impugned order dated 19th March, 2016 imposing a major penalty of dismissal from service upon the petitioner.

Regard may be had to the fact that the other writ petitions, which were filed by similarly placed persons challenging the show cause notice and wherein similar interim orders were granted by this Court, remained pending since 2001 and have been finally allowed by this Court vide judgment and order dated 07th August, 2015. Nothing has been brought to my notice that the aforesaid order of the learned Single Judge allowing the writ petitions have been challenged in the special appeal. It was stated at the bar that the said order has been complied with by the State.

Relevant it would be to mention that one of the selected candidates, namely, Govind Ballabh Joshi, who was selected along with the petitioner in the skilled sportsman category, was allocated the Uttaranchal State after bifurcation of the State of Uttar Pradesh. He was also dismissed from service on the same charge. He challenged his dismissal order before the High Court of Uttarakhand at Nainital by means of Writ Petition No. 4194 (S/S) of 2001 (Govind Ballabh Joshi v. State of Uttaranchal and others). A Division Bench of the Uttarakhand High Court presided over by the Chief Justice Hon'ble Mr. Justice Barin Ghosh vide judgment and order dated 10th November, 2010 allowed the said writ petition amongst other grounds that the petitioner therein obtained more marks in the selection process than the last candidate who was appointed in the unreserved category, hence his dismissal order was set aside on that ground alone, without adverting to other incidental issues.

It is averred in the writ petition that one of the Sub-Inspectors, whose services were terminated along with the petitioner, had preferred a claim petition, being Claim Petition No. 2535 of 2010 (Virendra Kumar v. The State of U.P. and others), before the State Public Services Tribunal, Lucknow. The claim petition was allowed by a judgment dated 30th May, 2011. It is also averred that another candidate Sushil Kumar Upadhyay had filed an appeal against his termination order and his termination order was set aside by the Inspector General of Police in appeal.

It is relevant to note that in the meantime the investigation in the aforementioned criminal case was completed and a final report was submitted with the approval of the Additional Director General of Police, Crime Branch, CID, wherein it was recorded that no offence was found against the petitioner. In view of the said development, the writ petition challenging the FIR was dismissed as infrutuous by a Division Bench of this Court vide order dated 18th September, 2002. In its order the Division Bench of this Court has recorded that no case against the petitioners have been found and a final report has been submitted except only one accused person, namely, Prem Chand Singh, the then D.I.G. (Personnel).

A counter affidavit has been filed on behalf of the second respondent. The stand taken by the contesting respondent is that the petitioner and other similarly placed persons were not eligible to get the appointment in the category of skilled sportsman on the ground that subsequent to the Government Order dated 11th February, 1975 another Government Order was issued on 08th May, 1987, wherein definition of skilled sportsman for appointment on the post of Sub-Inspector/ Constable (Civil Police) was changed. It is averred in the counter affidavit that the petitioner and other similarly placed persons are not skilled sportsman in terms of the subsequent Government order dated 08th May, 1987, hence their appointment was illegal. It is stated that the Government Order dated 08th May, 1987 was applicable for appointment of Sub-Inspector in the skilled sportsman quota and the selection proceeding was wrongly conducted in accordance with the Government Order dated 11th February, 1975. (Emphasis supplied by me) In the rejoinder affidavit the petitioner has reiterated his stand that he had secured 254 aggregate marks, whereas the last selected candidate under the unreserved category who was included in the wait list and had been granted appointment at an aggregate of 200.50 marks. It has also been averred that the writ petitions of the other similarly placed persons, who had challenged the show cause notice like the petitioner, were allowed, whereas the petitioner's writ petition was dismissed by the Lucknow Bench of this Court on 29th September, 2015.

I have heard Sri Ashok Khare, learned Senior Advocate, assisted by Sri Siddharth Khare, learned counsel for the petitioner, and learned Standing Counsel.

Sri Ashok Khare, learned Senior Counsel appearing for the petitioner, submitted that the advertisement was issued in the year 1991 and at that point of time there did not exist any statutory rule governing the recruitment to the post of Sub-Inspector. At the commencement of the recruitment a brochure was issued in the year 1991 along with the application form which governed the said recruitment. In the brochure there is a clear reference of the Government Order dated 11th February, 1975 and there is no reference of the subsequent Government Order dated 08th May, 1987. In the subsequent Government Order there was some change in respect of eligibility of the skilled sportsman. It was submitted that the allegation of misconduct levelled against the petitioner was wholly unfounded as the petitioner was an applicant in pursuance of the rules of recruitment published by the Police Training College for recruiting the Sub-Inspectors in the year 1991. The consideration of the petitioner was made strictly in accordance with the terms and conditions stipulated in the said rule. The fact that a subsequent Government Order had modified the necessary requirements for consideration in the skilled sportsman category was wholly irrelevant as no reference to such subsequent Government order existed in the rules of recruitment, which alone governed the recruitment. Hence, for the said fault of the department the selected and appointed candidates cannot be made to suffer.

He further submitted that out of the selected candidates it is the petitioner alone who has been dismissed from service. All the remaining persons selected in the same selection in the category of skilled sportsman continued to be in employment with no similar adverse order against any of them. Thus, the petitioner has not only been discriminated but also an anomalous position has been created as the candidates who secured lesser marks than the petitioner in the same selection remained in employment while the petitioner has been dismissed. Sri Khare has taken the Court to various documents to demonstrate the fact that other similarly placed candidates are allowed to continue and only the petitioner has been dismissed from service.

Sri Khare further urged that the petitioner is not guilty of any misconduct. He lastly urged that a major punishment has been imposed upon the petitioner but the procedure prescribed for holding disciplinary proceeding for imposing a major penalty has not been followed. Only one single date i.e. 22nd July, 2015 was fixed, on which date statement of Sri Hari Shankar Shukla, retired D.I.G., was recorded. The petitioner commenced his cross-examination, which, however, remained incomplete at the close of proceeding on 22nd July, 2015. Subsequent thereto, Sri Hari Shankar Shukla never appeared before the Enquiry Officer to enable the petitioner to complete his cross-examination. It was pointed out that apart from Sri Hari Shankar Shukla no other witness was examined and even the statement of the petitioner was not recorded and the copies of the documents sought by the petitioner were not supplied.

Sri Khare has placed reliance on a judgment of the Supreme Court in the case of Kashinath Dikshita v. Union of India and others, AIR 1986 SC 2118.

Learned Standing Counsel has submitted that the petitioner and other candidates selected under the skilled sportsman category/ quota were not eligible for appointment in such category in terms of the Government Order dated 08th May, 1987. The department has wrongly relied on the Government order of 1975, in which they were found to be eligible. Learned Standing Counsel has also placed reliance on some of the paragraphs of the counter affidavit. No other submission has been made.

I have considered the submissions advanced by learned counsel for the parties and perused the material on record.

It is a common ground that at the time of issuance of advertisement on 04th October, 1981 there was no statutory rule to govern the selection. The advertisement, which was issued pursuant to the circular dated 04th October, 1991, was governed by the executive orders issued from time to time. Along with the application form, a brochure was supplied to each candidate, the caption of which reads as under:

'Language'

For short the aforesaid brochure is hereinafter referred to as the "Rules".

Clauses- 7 & 8 of the said recruitment Rules deal with the reservation, which read as under:

'Language'

Clause-4 of the Rules specifies the permissible relaxations. The relevant part of the said clause, insofar as it relates to skilled sportsman, reads as under:

'Language'

"A careful perusal of the Rules and the advertisement issued on 04th October, 1991 shows that there is no reference of the subsequent Government order dated 08th May, 1987. Concededly, the petitioner was eligible for consideration in terms of the Government Order dated 11th February, 1975, which is mentioned in the Rules. He qualified all the stages of examination and after successfully completing his training, he was offered appointment. Later, an FIR was lodged against the petitioner. He challenged the said FIR before this Court by means of a writ petition, wherein an interim order was granted. The investigation was entrusted to the CB CID, which submitted a final report wherein it was clearly mentioned that no case was found against the petitioner. On the basis of the said report, the Division Bench of this Court disposed of the petitioner's writ petition recording the said fact. In the counter affidavit also there is no allegation against the petitioner that he committed any fraud or misrepresentation. It is on the record that in the enquiry conducted by the CB CID the then DIG (Personnel) Sri Virendra Kumar has admitted in his statement that inadvertently in the Rules the Government Order dated 11th February, 1975 was mentioned. In the counter affidavit also it has been admitted that it was an inadvertent mistake by the department. In case there was any such inadvertent mistake in the advertisement/ brochure/ Rules, it was open to the department to issue a corrigendum. No such steps were taken by the department. In the departmental enquiry the department has failed to establish any charge against the petitioner of the misconduct. I have perused the enquiry report carefully. In the enquiry report no finding has been recorded by the Enquiry Officer regarding any misconduct on the part of the petitioner.

Pertinently, one of the selected candidates, namely, Govind Ballabh Joshi, whose name was at Serial No. 3 in the list of 13 selected candidates and who was allocated to the newly created State of Uttaranchal after bifurcation of the State of Uttar Pradesh, preferred a writ petition before the Uttarakhand High Court challenging his dismissal order. His writ petition was allowed by the Division Bench of the Uttarakhand High Court on the ground that he had secured more marks than the last selected candidates. Hon'ble Mr. Justice Barin Ghosh, the Chief Justice, speaking for the Bench held as under:

"2. Subsequent thereto, a show cause was issued to the petitioner. In that, it was indicated that petitioner though was not a skilled sports person, he represented himself to be so and obtained appointment on the basis of such misrepresentation. In reply thereto, petitioner represented that there was no misrepresentation on his part as in terms of 1975 Government Order, which was mentioned in the brochure referred to in the advertisement, petitioner was a skilled sports person and that he had no knowledge that subsequently, the qualification of skilled sports person had been altered by the State in 1987. In addition to that, petitioner contended that in accordance with the marks obtained by him in course of selection, he should have been appointed in the open category and accordingly, question of interfering with his appointment cannot arise. After considering the reply of the petitioner, by the order assailed in the present writ petition, the service of the petitioner was again terminated compelling the petitioner to file the present writ petition. In the counter affidavit filed to the writ petition, it has been accepted that petitioner obtained more marks in the selection process then the last person, who was appointed in the open category. That being a situation, we do not think that the services of the petitioner could be terminated."

Applying the same principle in the present case, I find that the petitioner has secured 254 marks, which is evident from the report submitted by Sri Hari Shankar Shukla, the then Superintendent of Police, CB CID, Lucknow in December, 1998, on the basis of which the disciplinary proceedings were initiated against the petitioner. A copy of the said report is on the record as Annexure-RA-3 to the rejoinder affidavit. From a perusal of the said report it is evident that the petitioner has secured 254 marks, whereas the last candidate, who has been offered appointment, has secured 200.50 marks. This fact is also evident from the reply submitted by the petitioner in response to the show cause notice issued by the second respondent dated 03rd January, 2016. There is no denial of the said fact on the record.

In the light of above discussions, it is demonstrably clear that the instant case falls well within the ratio of the Division Bench judgment of the Uttarakhand High Court in identical and similar case.

In view of the above, I respectfully follow the judgment of the Division Bench of the Uttarakhand High Court and accordingly, I find that the writ petition is deserved to be allowed on this ground alone.

Additionally, I find that in respect of the similarly placed persons different orders have been passed by this Court, the State Public Services Tribunal and the Inspector General of Police while exercising his appellate jurisdiction. From the record following facts emerge in respect of the different orders, which show that only the petitioner has been dismissed and all other similarly placed persons have been allowed to continue:

(a) The petitioner's writ petition, being Writ Petition No. 3347 (S/S) of 2001, wherein an interim order was passed on 16th July, 2001, was dismissed on the ground that the writ petition against the show cause notice is not maintainable, whereas the writ petitions, being Writ Petition No. 3335(S/S) of 2001, Akhtyar Ahmad v. State of U.P. and others, Writ Petition No. 3331 (S/S) of 2001, Ajay Kumar Singh v. State of U.P. and others, and Writ Petition No. 3125 of 2001, Aniruddha Kumar Singh v. State of U.P. and others, which were filed on the same day and similar interim orders were granted therein in respect of the similarly placed candidates, have been allowed by a learned Single Judge of this Court at Lucknow Bench on 07th August, 2015. The petitioner's Writ Petition No. 3347 (S/S) of 2001, as mentioned above, was dismissed by this Court at Lucknow on 29th September, 2015. There is nothing on the record to indicate that the department has challenged the judgment of the learned Single Judge dated 07th August, 2015. From a perusal of the said judgment and orders, which are on the record as Annexures-7, 8 and 9 to the rejoinder affidavit, show that the contesting respondent has not even filed counter affidavit in those cases.

(b) The petitioner in paragraph-47 of his writ petition has averred that one Virendra Kumar has preferred Claim Petition No. 2535 of 2010, which was allowed by the State Public Services Tribunal, Lucknow vide judgment and order dated 30th May, 2011. A copy of the judgment passed in the said claim petition is on the record as annexure-29 to the writ petition. The Tribunal has set aside the order of punishment dated 30th June, 2001 and the appellate order dated 01st September, 2010. It has directed the respondents to reinstate the petitioner therein with all consequential service benefits.

(c) The petitioner has also averred in the writ petition that one Sushil Kumar Upadhyay had filed appeal against his termination order and his termination order was set aside by the Inspector General of Police in appeal. This fact is also uncontroverted.

Having due regard to the facts mentioned above, it is established that only petitioner's service has been dismissed and the other similarly placed persons are still in service.

Insofar as the submission of learned Senior Counsel appearing for the petitioner that the departmental proceeding has stood vitiated on the ground of violation of natural justice as the material documents were not supplied to the petitioner and he was not allowed to complete his cross-examination of the sole departmental witness Sri Hari Shankar Shukla, I find that there is no need to go into the said issue as the petition deserves to be allowed on the ground mentioned above.

For all the reasons mentioned above, I find that the impugned dismissal order of the petitioner dated 19th March, 2016 passed by the second respondent needs to be set aside and accordingly, it is set aside. The petitioners in the earlier writ petitions were granted interim order and on the basis of the said interim orders they were continuing. In the present writ petition no interim order was granted. Accordingly, the petitioner shall be entitled for all consequential benefits and he shall be deemed to be in service during the interregnum period also. Insofar as his salary for the period when he was not in service is concerned, it is open to the petitioner to move an application before the concerned authority. In the event any such application is moved, the same shall be considered and appropriate order shall be passed in accordance with law expeditiously.

The writ petition is accordingly allowed. No order as to costs.

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