Nov - High Court of Judicature at Allahabad

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1024 INDIAN LAW REPORTS ALLAHABAD SERIES [2009 11. The Apex Court has further held that in the said circumstances discharge from service cannot be said to be by way of punishment. In Sugreev Singh's case (Supra), the Division Bench has also taken the same view. 12. After considering all facts and circumstances of the present case and decisions of this Court as well as the Apex Court, I am of view that discharge of petitioner from service cannot be said to be illegal or disproportionate. 13. In view of aforesaid fact, the writ petition is devoid of merits and is hereby dismissed. No order is passed as to costs. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 05.10.2009 BEFORE THE HON’BLE A.P. SAHI, J. Civil Misc. Writ Petition No. 57675 of 2007 Jafar Khan Versus State of U.P. and others Counsel for the Petitioner: Sri Rohit Upadhyay Counsel for the Respondents: Sri K.K. Chand Sri Rajesh Kumar Yadav C.S.C. …Petitioner …Respondents Group-D Employees Service-Rule-1985- Cancellation of appointment of class 4 th employee- working government Girls Inter College- Principle is the only competent authority of order impugned passed by Secretary- without Notice opportunity without application of mind held illegal principle of Natural justice violated cannot sustain. Held: Para 12 & 13 In view of the aforesaid and the undisputed position with regard to applicability of the rules, the competent authority being the Principal, the order of cancellation, termination or otherwise could have only been passed by the Principal of the institution. The State Government does not have any power either defined under the aforesaid Rules, 1985 or even as a residuary power to determine status of employment of a Class-IV employee of a Government Girls Degree College. In view of this, the directions issued by the State Government and the direction issued by the Director of Education at the best can be administrative recommendations. The proceedings are to be initiated by the Competent Authority. Keeping in view Rule 31 referred to herein above if the appointment of the petitioner was illegal or invalid, the cancellation has to be initiated by the Principal of the Institution and it is the Principal who has to issue a notice to the petitioner and to cancel his appointment. It is admitted in the counter affidavit that the impugned orders have emanated without there being any notice or opportunity to the petitioner and the Principal has, as a matter of fact surrendered his jurisdiction in favour of State Government as well as Director of Education. This in the opinion of the Court is impermissible under law. (Delivered by Hon'ble A.P. Sahi, J.) 1. Heard Sri Bheem Singh, learned counsel for the petitioner, learned standing counsel and Sri K.K. Chand, learned counsel for respondents No. 1, 2 and 3 and perused the counter affidavit filed on behalf of the State.
3 All] Jafar Khan V. State of U.P. and others 1025 2. Sri R.K. Yadav, Advocate for caveator has also been heard under Chapter 22, Rule 5(A) of the Allahabad High Court, Rules. 3. The petitioner has come up against the order dated 27th September, 2007 and 19th October, 2007 whereby the appointment of the petitioner as Class IV employee in a Government Girls Degree College has been cancelled on the ground that the selections held were invalid. 4. The impugned order also recites that the petitioner had not filed his certificate with regard to low-vision before the Competent Authority and in spite of that he was selected. 5. The contention raised on behalf of the petitioner is that the impugned order dated 27th September, 2007 has been passed by the Principal Secretary Government of U.P. who is not the Competent Authority to pass any such order and further the Director of Education had no authority to issue an order to the Principal of the Institution to cancel the appointment of the petitioner. It is urged that the said orders are without jurisdiction and consequently both the orders have been passed without giving any notice or opportunity to the petitioner and, therefore, it is in violation of the principles of natural justice. The averments to that effect have been made in paragraph 19 and 26 of the writ petition. The petitioner has also tried to justify the certificate issued to him by a medical practitioner and has urged that, had the petitioner been given an opportunity, he would have been demonstrated that he was fully qualified and eligible. 6. Lastly, it has been submitted by Sri Bheem Singh, that the impugned order has been passed at the behest of a member of the Legislative Assembly and, therefore, the impugned orders are vitiated on the ground of malice as well. 7. A counter affidavit has been filed on behalf of the State as well as also on behalf of the Caveator who is seeking impleadment. From the perusal of the counter affidavit filed on behalf of the State indicates that the stand taken is that since the State Government controls all Government Institutions, therefore, the Principal of a Degree College is also under the control of Government and there is no illegality in the issuance of the directions either by the Principal Secretary or by the Director of Education. 8. So far as opportunity is concerned, it has been stated in paragraph 16 of the counter affidavit that since the selections were invalid and illegal, therefore, there was no necessity of giving opportunity of hearing to the petitioner. 9. A rejoinder affidavit has also been filed to the said counter affidavit denying the aforesaid allegations. 10. Learned counsel for the proposed respondent has also adopted the same argument and urged that petitioner has obtained the appointment illegally and since his appointment is illegal the direction issued by the State to cancel the appointment of the petitioner does not suffer from any infirmity. 11. It remains undisputed between the parties that the appointment of a Class-IV employee of a Government Girls Degree College has to be made by the
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Nov - High Court of Judicature at Allahabad

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