Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(All) 447

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD (LUCKNOW)
RAJAN ROY, J.
Anand Kumar Mishra – Appellant
Versus
State Of U.P. Thru. Prin. Secy. Medical Education Lko And Ors. – Respondents
Writ A No.9049 of 2020
Decided on : 10-05-2022

Advocates:
Advocate Appeared:
For the Appellant : Srideep Chatterjee
For the Respondent: Abhinav Trivedi, Avadhesh Kumar Singh, Baldev Singh, Dr. V.K. Singh, Shubham Tripathi

Point of law: 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.

Headnote:
Constitution of India, 1950 – Article 226 – U.P. King George Medical University Act, 2002 –Sections 13, 42(1), (2), 4 – U.P. Recruitment of Dependent of Government Servants (Dying-in-Harness) Rules, 1974 – Rule 5 – Seeking impleadment – Undisputed facts – Sick Attendant – Compassionate appointment – It has also been prayed that petitioner be allowed to work on post of Head Assistant and be paid regular salary as and when same falls due - 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 (Para 39)
Finding of the Court :
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 – Appointing/disciplinary authority is directed to issue a fresh show cause notice to petitioner in the light of relevant rules which may be applicable asking petitioner to submit his response to the same – Thereafter, considering response, if any submitted by petitioner, appointing/disciplinary authority shall take a final decision in matter independently and objectively considering entire facts of case, material on record (except noting of Vice Chancellor), Rule position i.e., Statute 39 quoted hereinabove, and law on subject as may be placed before it, but, ignoring observations/findings, if any in impugned Government Order as to merits of matter, which shall not be read at all by disciplinary authority for this purpose – He shall take decision within two months.
Results: Petition is disposed of.

JUDGMENT :

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 o