Allahabad High Court
Ashok Kumar Yadav vs State Of U.P. And 5 Others on 19 August, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:141426 Court No. - 49 Reserved A.F.R. Case :- WRIT - A No. - 45146 of 2015 Petitioner :- Ashok Kumar Yadav Respondent :- State of U.P. and thers Counsel for Petitioner :- Anurag Asthana,Ashok Khare,Sanjeev Kumar Yadav Counsel for Respondent :- B.D. Pandey,C.S.C.,Rohit Pandey With Case :- WRIT - A No. - 41708 of 2015 Petitioner :- Raghvendra Chaurasia Respondent :- State of U.P. and others Counsel for Petitioner :- Ashok Khare,Manendra Kumar Agrahari Counsel for Respondent :- C.S.C. With Case :- WRIT - A No. - 42609 of 2015 Petitioner :- Ajeet Pratap Pal and another Respondent :- State of U.P. and others Counsel for Petitioner :- Gautam Baghel Counsel for Respondent :- C.S.C. With Case :- WRIT - A No. - 45142 of 2015 Petitioner :- Ram Lakhan Yadav Respondent :- State of U.P. and others Counsel for Petitioner :- Anuj Tripathi,Anurag Asthana,Ashok Khare Counsel for Respondent :- B.D. Pandey,C.S.C.,Rohit Pandey With Case :- WRIT - A No. - 1441 of 2024 Petitioner :- Arvind Yadav Respondent :- State of U.P. and others Counsel for Petitioner :- Abhishek Mishra Counsel for Respondent :- C.S.C.,Vivek Kumar Rai With Case :- WRIT - A No. - 42482 of 2015 Petitioner :- Rakesh Kumar Pandey Respondent :- State of U.P. and others Counsel for Petitioner :- Ashok Khare,Neeraj Singh Counsel for Respondent :- B S Pandey,C.S.C.,Durga Tiwari With Case :- WRIT - A No. - 42483 of 2015 Petitioner :- Jay Nath Yadav Respondent :- State of U.P. and others Counsel for Petitioner :- Ashok Khare,Neeraj Singh Counsel for Respondent :- C.S.C.,Durga Tiwari With Case :- WRIT - A No. - 42843 of 2015 Petitioner :- Chandra Shekhar Yadav Respondent :- State of U.P. and others Counsel for Petitioner :- Ashok Khare,Siddharth Khare Counsel for Respondent :- Durga Tiwari,S.C. With Case :- WRIT - A No. - 42844 of 2015 Petitioner :- Radhika Chakaravarti Respondent :- State of U.P. and others Counsel for Petitioner :- Ashok Khare,Siddharth Khare Counsel for Respondent :- C.S.C.,Durga Tiwari With Case :- WRIT - A No. - 46719 of 2015 Petitioner :- Harish Chandra Bharti and another Respondent :- State of U.P. and others Counsel for Petitioner :- Alok Mishra,Shri G.K. Singh Counsel for Respondent :- C.S.C.,Durga Tiwari Hon'ble J.J. Munir,J.
1. This judgment will decide Writ-A No.45146 of 2015 and connected Writ-A Nos.41708 of 2015, 42609 of 2015, 45142 of 2015, 1441 of 2024, 42482 of 2015, 42483 of 2015, 42843 of 2015, 42844 of 2015 and 46719 of 2015.
2. The writ petitioners in all the writ petitions were Class-III and IV employees of two privately managed postgraduate colleges that are in receipt of grant-in-aid from the State Government. Both the postgraduate colleges, where the writ petitioners had been serving, at the time when they were selected and appointed, were under the control and management of an Authorized Controller appointed by the State Government. In all these cases, the writ petitioners complain of illegal termination of their services under orders of the State Government that are impugned in each of the writ petitions, besides those giving effect to those orders passed by the Director of Education (Higher Education) and the Authorized Controller of the Institution or the Principal, depending upon the post held by the petitioner concerned in a particular writ petition.
3. In one of the writ petitions, to wit, Writ-A 1441 of 2024, all that is under challenge is an order of the Director of Higher Education, addressed to the Higher Education Officer, Allahabad, in compliance with the Government Order dated 19.06.2015, directing termination of services of employees at the A.P.N. Post Graduate College, Basti, selected and appointed in violation of rules. The writ petitioner in this case has not challenged the Government Order dated 19.06.2015 passed by the State Government or the consequential order issued by the competent Appointing Authority of the Institution, terminating his services. He pleads a case of oral termination of services pursuant to the order dated 20.06.2015 passed by the Director of Education (Higher Education).
4. Out of the ten writ petitions, that have been heard together and proposed to be decided by this judgment, Writ-A Nos.45146 of 2015, 41708 of 2015, 42609 of 2015, 45142 of 2015, 1441 of 2024 have been filed by employees of the A.P.N. Post Graduate College, Basti, whereas Writ-A Nos.42482 of 2015, 42483 of 2015, 42843 of 2015, 42844 of 2015 and 46719 of 2015 have been filed by employees of the Shiv Harsh Kisan Post Graduate College, Basti. The A.P.N. Post Graduate College, Basti, wherever individually referred, shall hereinafter be called 'the A.P.N.', whereas the Shiv Harsh Kisan Post Graduate College, Basti, in all individual references to the said Institution, shall be called 'the Shiv Harsh'; in case of a collective reference to both the institutions, these shall be called 'the Institutions'.
5. Of all the ten writ petitions, above detailed, Writ-A No.45146 of 2015 has been heard as the leading case. Nevertheless, a reference to the facts of each of the individual writ petitions, wherever necessary and to the extent required, shall be made in the course of this judgment.
6. In order to facilitate a better understanding of the facts involved in the leading case and the connected matters, it would be apposite to set forth relevant information regarding the facts in each case in tabular form, shown below:
Sl. No. Name of Employee Class and Designation Institution Order impugned date Passed by Writ-A No.
1.
Ashok Kumar Yadav Class-III, Stenographer A.P.N. 19.06.2015 Special Secretary, Govt. of U.P., Lucknow 45146/ 2015 20.06.2015 Director (Higher Education), Allahabad 22.06.2015 Authorized Controller
2.
1. Ajeet Pratap Pal
2. Radhey Shyam Class-IV, Book Lifter Class-IV, General Peon A.P.N. 19.06.2015 Special Secretary, Govt. of U.P., Lucknow 42609/ 2015 20.06.2015 Director (Higher Education), Allahabad 22.06.2015 Authorized Controller 24.06.2015 Principal
3. Raghvendra Chaurasia Class-IV, General Peon A.P.N. 19.06.2015 Special Secretary, Govt. of U.P., Lucknow 41708/ 2015 20.06.2015 Director (Higher Education), Allahabad 24.06.2015 Principal
4. Ram Lakhan Yadav Class-III, Routine Clerk A.P.N. 19.06.2015 Special Secretary, Govt. of U.P., Lucknow 45142/ 2015 20.06.2015 Director (Higher Education), Allahabad 22.06.2015 Authorized Controller
5. Arvind Yadav Class-III, Laboratory Assistant Geography A.P.N. 20.06.2015 Director (Higher Education), Allahabad 1441/ 2024
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A case of oral termination by the Institution
6.
1. Harish Chandra Bharti
2. Sailendra Pt. Singh Class-III, Routine Clerk Class-III, Library Clerk Shiv Harsh 19.06.2015 Special Secretary, Govt. of U.P., Lucknow 46719/ 2015 20.06.2015 Director (Higher Education), Allahabad 08.07.2015 Authorized Controller
7. Rakesh Kumar Pandey Class-III, Laboratory Assistant, Botany Shiv Harsh 19.06.2015 Special Secretary, Govt. of U.P., Lucknow 42482/ 2015 20.06.2015 Director (Higher Education), Allahabad 08.07.2015 Authorized Controller
8. Radhika Chakaravarti Class-III, Laboratory Assistant, Geography Shiv Harsh 19.06.2015 Special Secretary, Govt. of U.P., Lucknow 42844/ 2015 20.06.2015 Director (Higher Education), Allahabad 08.07.2015 Authorized Controller
9. Chandra Shekhar Yadav Class-III, Routine Clerk Shiv Harsh 19.06.2015 Special Secretary, Govt. of U.P., Lucknow 42843/ 2015 20.06.2015 Director (Higher Education), Allahabad 08.07.2015 Authorized Controller
10. Jay Nath Yadav Class-III, Laboratory Assistant, Physics Shiv Harsh 19.06.2015 Special Secretary, Govt. of U.P., Lucknow 42483/ 2015 20.06.2015 Director (Higher Education), Allahabad 08.07.2015 Authorized Controller
7. Since Writ-A No.45146 of 2015 has been heard as the leading case, facts apart from those already set forth hereinabove, would be noticed from that petition. Ashok Kumar Yadav, the writ petitioner in the leading case, applied in response to an advertisement dated 25.08.2014 published by the Authorized Controller of the A.P.N. On 04.03.2015, the petitioner was called for interview and asked to undergo a typing test during the course of interview. The petitioner was selected for appointment to the post of a Stenographer in the A.P.N. The Regional Higher Education Officer, Gorakpur vide memo dated 26.03.2015, addressed to the Principal/ the Authorized Controller of the A.P.N., approved the petitioner's selection for the post of Stenographer, regarding which, papers were submitted to him. On the following day, i.e. 27.03.2015, a letter of appointment was issued by the Authorized Controller of the A.P.N., granting appointment to the petitioner against the vacant post of Stenographer in the pay scale of Rs.5200-20200/- with a grade pay of Rs.2800/-. These documents are on record of the writ petition.
8. It is the petitioner's case that he joined the institution and discharged his duties with utmost devotion and sincerity. He was surprised to receive an office order dated 22.06.2015 issued by the Authorized Controller of the A.P.N., cancelling his appointment. The order dated 22.06.2015, impugned in the petition, passed by the Authorized Controller, does not carry a decision by the said Authority, according to the petitioner, but merely echoes compliance with an order dated 20.06.2015 issued by the Director (Higher Education), U.P., Allahabad, which, in turn, gives effect to a decision of the State Government in the Department of Higher Education dated 19.06.2015, directing termination of services of the petitioner, besides others made in the establishment of the A.P.N. It is the petitioner's case that he did not know initially what the orders dated 19.06.2015 and 20.06.2015 were about. He later on secured copies of these orders and came to know that the process of appointment for the petitioner was held invalid by the State Government under some kind of an inquiry undertaken at the Government's behest. The petitioner says that he has been appointed validly in accordance with rules, after facing a selection committee constituted for the purpose and undergoing the requisite typing test. He holds the essential qualifications prescribed. The Government Order dated 19.06.2015, which is the source of it all, relies on some inquiry report, where the inquiry was undertaken behind the petitioner's back. The order passed by the Government is one which was made also without hearing the petitioner. The orders of the Director (Higher Education) dated 19.06.2015 and the order by the Authorized Controller impugned, terminating the petitioner's service, are nothing more than orders mechanically implementing the State Government's order dated 19.06.2015.
9. It is pleaded in paragraph No.14 of the writ petition that the inquiry, that was undertaken under orders of the Government, was based upon a complaint by Hon'ble Mr. Sanjay Pratap Jaiswal, Member of the Legislative Assembly. This complaint was addressed by the Hon'ble Member on 18.03.2015. The Government constituted a two-member committee and a fact finding or a preliminary inquiry was undertaken by this committee, which found the process of selection flawed. The Special Secretary on behalf of the State Government made the substantial order impugned dated 19.06.2015. The petitioner has pleaded that the preliminary inquiry was held ex parte without hearing him. The Principal of the Institution was blamed for holding flawed selections and suspended from service pending inquiry.
10. The petitioner further says that the order dated 19.06.2015 passed by the State Government does not speak of the allegations or the infirmities found by the inquiry committee in the selection process. It mentions irregularities committed by the then Principal Dr. R.K. Pathak, where, there is an allegation of improper evaluation in the typing test, so far as the petitioner is concerned. There is also some case about erroneous award of quality point marks, because qualifications beyond intermediate were taken into account, which, under the rules, were not relevant. Be that as it may, the case of the petitioner is that neither was he heard by the inquiry committee that undertook a fact finding or the preliminary inquiry nor by the State Government, before they passed the order impugned dated 19.06.2015. He, thus, complains of violation of the principles of natural justice, in his pleadings set forth in the writ petition.
11. There are two counter affidavits filed in the leading case - one on behalf of respondent Nos.1, 2 and 4, and the other, on behalf of respondent No.3. Substantially, the first counter affidavit mentioned is on behalf of the State Government and its officers, whereas the other is on behalf of the Pt. Deen Dayal Upadhyay Gorakhpur University, Gorakhpur. There is a rejoinder affidavit put in by the petitioner, answering the State Government's counter. Substantially, the issue is between the State Government and their officers on one hand, and the petitioner, on the other.
12. Upon a perusal of the counter affidavit filed on behalf of the State Government and their officers, what we notice is that it is an affidavit filed by Dr. Vinita Yadav, Assistant Director, Directorate of Higher Education, U.P., Allahabad. In our opinion, she is competent to represent respondent Nos.2 and 4, but not the State Government. After all, the State Government can be represented by a Secretary of theirs and not by an officer, working in the Directorate of Higher Education. In substance, therefore, the counter affidavit, on behalf of the State Government and their officers, is not really one on behalf of the State Government, who have passed the substantial order impugned. We may remark at this stage that in all the connected matters, the date of advertisement and the post advertised, to which the various petitioners have been selected, may be different and the institution, where the concerned petitioner appointed, may either be the A.P.N. or the Shiv Harsh, but the same issues, as those involved in the present petition, arise for consideration. The substantial order, that has been passed by the State Government, directing a termination of service of all the petitioners, is the same and founded on a common inquiry report - a fact finding or preliminary inquiry, done under orders of the State Government. It is for these reasons that the same pleas have been raised in all the petitions and common questions of fact and law arise.
13. It must also be remarked that in all the writ petitions, the counter affidavit, that has been filed on behalf of the State Government and its officers, is an affidavit not sworn by a Secretary to the Government and, therefore, not really a competent affidavit on behalf of the Government. The affidavit can be read as one on behalf of the officers of the Directorate of Higher Education and the Regional Director of Higher Education, Gorakhpur, but not the Government, as already remarked.
14. There is one writ petition, being Writ-A No.45142 of 2015, where there is no counter affidavit filed, either on behalf of the State Government or their officers or the University, despite time being granted.
15. In the counter affidavit filed in the leading case, it is averred in paragraph No.4 that an inquiry was conducted on the basis of complaints made by the College regarding recruitment of employees on various posts. It is also asserted that the inquiry, after being done, led to an inquiry report, that was submitted vide letter dated 26.04.2015, where opportunity was given to the petitioner to have his say. It is also asserted that after due consideration of the petitioner's reply, it was found unsatisfactory. His selection and the appointment was, therefore, held invalid. It is also said in the counter affidavit that the petitioner is a brother of full blood to one Ravindra Nath Yadav, a Clerk posted in the office of the Regional Higher Education Officer, Gorakhpur, who was handling matters relating to District Basti. One Professor Sadan Ram happened to be the Regional Higher Education Officer at the material point of time. It is claimed that in this way, the petitioner's brother influenced the selection process and members of the selection committee to unfairly select him. The advertisement is castigated as one, which did not conform to the prescribed scheme of qualifications. The candidates, who had knowledge of typing, were ignored and the petitioner, with no such skill or knowledge, selected. The petitioner's appointment is also asserted to be one not in accordance with Articles 14, 16 and 21 of the Constitution, but the result of an arbitrary selection influenced by extraneous considerations.
16. In the rejoinder affidavit, the petitioner has averred in paragraph No.5 that the entire inquiry was a fact finding inquiry, done behind his back. The allegation regarding undue influence is attributed to a relative of his, a junior clerk in the office of the Regional Higher Education Officer. He has stated that a junior clerk could not have influenced the selection and appointment. It is also averred that opportunity of hearing ought have been given to the petitioner, not at the level of the Authorized Controller, but the State Government, who took the decision to cancel appointments and rescind the selection process relating to the petitioner. No opportunity was given by the State Government before passing the impugned order dated 19.06.2015. It is also averred in paragraph No.5 of the rejoinder that the advertisement was in accordance with rules. It was published in two newspapers of wide circulation, to wit, the daily 'Hindustan' and the 'Dainik Jagran'. About the petitioner not possessing a CCC Certificate issued by the DOEACC Society, it is pleaded that the requirement was introduced through a Government Order dated 03.11.2015 and would have no application at the time when he was selected. It is also asserted that the petitioner, in any case, possesses a CCC Certificate granted to him by the DOEACC Society.
17. It is also pleaded that so far as the petitioner's selection and appointment being influenced by Ravindra Nath Yadav, a Clerk in the office of the Regional Higher Education Officer is concerned, disciplinary proceedings initiated against Ravindra Nath Yadav, on the charge of influencing the selection process, has resulted in a complete exoneration for him and reinstatement in service vide order dated 23.01.2016.
18. This petition as also the connected matters were admitted to hearing on 06.05.2024 and heard on that day, and again on 21.05.2024 extensively. There was a change of roster, after which, under orders of nomination by his Lordship the Hon'ble The Chief Justice, the matter came up again before me. It was heard further on 10.01.2025, 04.02.2025 and lastly on 10.03.2025, when judgment was reserved.
19. Heard Mr. Ashok Khare, learned Senior Advocate assisted by Mr. Kauntey Singh, learned Counsel for the petitioners in Writ-A Nos.45146 of 2015, 41708 of 2015, 42482 of 2015, 42483 of 2015, 42843 of 2015, 42844 of 2015 and 45142 of 2015, Mr. Ashok Khare, learned Senior Advocate assisted by Mr. Alok Mishra, learned Counsel for the petitioner in Writ-A No.46719 of 2015, Mr. Abhishek Mishra, learned Counsel for the petitioner in Writ-A No.1441 of 2024, and Mr. Shivendra Rajwar, Advocate holding brief of Mr. Gautam Baghel, learned Counsel for the petitioners in Writ-A No.42609 of 2015; Mr. Vivek Kumar Rai, learned Counsel appearing for the respondent, Pt. Deen Dayal Upadhyay Gorakhpur University, Gorakhpur in Writ-A Nos.45146 of 2015, 1441 of 2024 and 45142 of 2015; and Mr. Sharad Chandra Upadhyay, learned Standing Counsel appearing for the State respondents in all the writ petitions. No one appears on behalf of the other respondents, the Authorized Controller or the Principal of the College in any of the writ petitions.
20. It is submitted by Mr. Ashok Khare, learned Senior Advocate assisted by Mr. Kauntey Singh and Mr. Alok Mishra, learned Counsel for the petitioners in Writ-A Nos.45146 of 2015, 41708 of 2015, 42482 of 2015, 42483 of 2015, 42843 of 2015, 42844 of 2015, 45142 of 2015 and 46719 of 2015, that the petitioners in each of these writ petitions were appointed by the Authorized Controller/ the Principal of the A.P.N. or the Shiv Harsh, after an approval to the process of selection granted by the Regional Higher Education Officer, Gorakhpur. It is submitted by Mr. Khare that the petitioners have been appointed after invitation of applications by means of advertisement published in newspapers in accordance with the procedure prescribed under Chapter XXIII of the Statutes of the Gorakhpur University, in particular, Statute 23.01 to Statute 38. There is no infirmity in the process of advertisement. It is next argued that the order passed by the State Government on 19.06.2015, which is the basis of all orders individually impugned in the writ petition, is ultra vires and beyond the authority of the State Government to make. The only authority vested in the State Government under the U.P. State Universities Act, 1973 (for short, 'the Act of 1973') are the powers conferred upon the Government by virtue of Sections 40, 57, 58 and 59. The power under Section 40 is a power of inspection with regard to affiliated/ associated colleges of the University, where, directions envisaged in the said provision can alone be issued. Such power of inspection vested in the State Government does not clothe them in any manner with authority to annul appointments of individual employees made in the affiliated colleges of the University.
21. The power under Sections 57 to 59 is a power to supersede the committee of management by appointing an Authorized Controller in contingencies contemplated under the law. Neither of the aforesaid provisions of the Act of 1973 confer power or authority upon the State Government to interfere with the selection and/ or appointment of Class-III/ Class-IV employees in the affiliated colleges of the Universities governed by the Act of 1973. Apart from the aforesaid power vested in the State Government regarding supersession of the management in certain cases, the only other authority vested in the Government is under the Uttar Pradesh State Control Over Public Corporations Act, 1975 (for short, 'the Act of 1975'). It is pointed out that the Act of 1975 empowers the State Government to issue directions to statutory corporations, but excludes Universities from the purview of the said Act. The Act of 1973 alone governs the Universities. It is emphasized that individual selections and appointments do not involve any policy matter. The final authority to grant approval or take objection against irregularity in selection proceedings is the Regional Higher Education Officer of the region. In the present case, the Regional Higher Education Officer, Gorakhpur has granted approval to the petitioner's selection. It is after grant of approval by the Regional Higher Education Officer that appointment orders in each case have been issued in favour of the petitioner. They have subsequently joined and commenced discharging duties.
22. It is next submitted that the impugned order passed by the State Government is entirely vague and fails to specify the particulars of irregularities in the selection proceedings or the consequent appointment. In the absence of any specific finding having been recorded by the State Government, it was, in no manner, open for the Government to pass the order impugned dated 19.06.2015. The other orders are merely consequential. It is argued that the State Government have passed the order impugned without opportunity of hearing being afforded to the petitioners. The order is, therefore, a nullity. The learned Counsel for the petitioners submits that it is a settled principle of the law that an order, as serious as cancellation of appointment, where candidates have joined, entitle them to the grant of opportunity of hearing before such a drastic order, carrying civil consequences, is made. Here, that opportunity has not been afforded by the Government, who have taken the substantial decision in the matter. In support of his contention, learned Counsel for the petitioners places reliance upon the authority of the Supreme Court in Nisha Devi v. State of Himachal Pradesh and others, (2014) 16 SCC 392 and another decision of their Lordships of the Supreme Court in Indian Institute of Information Technology, Allahabad and another v. Dr. Anurika Vaish and others, (2017) 5 SCC 660.
23. It is, in the last, submitted that the order impugned passed by the Government is invalid, as it fails to make an endeavour to segregate the tainted portion of the selection proceedings from the untainted part thereof. Instead, a composite order has been passed, cancelling all Class-III and Class-IV appointments made in two different postgraduate colleges of the district. This cannot be done, according to the learned Counsel, and he reposes faith for the purpose in the authority of the Supreme Court in Uttar Pradesh Jal Nigam and others v. Ajit Singh Patel and others, (2019) 12 SCC 285.
24. Mr. Ashok Khare, learned Senior Advocate assisted by Mr. Alok Mishra, learned Counsel in support of Writ-A No.46719 of 2015 has emphasized that under the First Statutes of the University, the appointing authority, in relation to Class-III employees, is the management of the college, whereas for Class-IV employees, it is the Principal. It is emphasized that the two petitioners in this writ petition have been selected and appointed to Class-III posts; one of them a Routine Grade Clerk, and the other, a Library Clerk. They were appointed in the establishment of the Shiv Harsh. The advertisement relative to the two vacancies was issued in the 'Dainik Jagran' and the 'Hindustan', both reputed dailies, issues dated 14.09.2013. The qualification advertised for the Routine Grade Clerk was an intermediate certificate and the post was reserved for SC/ ST. For the Library Clerk, which was an unserved post, the qualification prescribed as essential was an intermediate certificate. Preferential qualification was also mentioned as a B.Lib. Degree. The selection committee, which selected the petitioners in this case, held interview on 16.01.2014. It comprised the following members:
(i) Dr. Jay Prakash, Nominee of the Authorized Controller;
(ii) Ajeet Kumar Pandey, Principal of the College;
(iii) District Inspector of Schools, Basti;
(iv) District Employment Exchange Officer, Basti.
25. The petitioners were selected by the aforesaid selection committee in accordance with the procedure prescribed. The Regional Higher Education Officer granted approval to their selection, upon which, letters of appointment dated 27.01.2014 were issued by the Authorized Controller of the Shiv Harsh in their favour. Both the petitioners joined the Shiv Harsh on 29.01.2014. The inquiry against the petitioners was ordered by the State Government upon an Hon'ble MLA's complaint, which was a fact finding inquiry. The petitioners were not heard there at all, and if that report were to form the basis of action, it would be gross violation of principles of natural justice.
26. Mr. Khare submits that the State Government had taken a decision to cancel the selection proceedings. The orders, therefore, made by the Director (Higher Education) and the appointing authority in the Institutions was nothing more than a ritual, as Mr. Khare puts it. It is argued by Mr. Khare that a post decisional opportunity of hearing before the Authorities of the Directorate of Education or the Management of the Institutions, would not avail the petitioners, inasmuch as they would be bound by the orders of the State Government. They cannot arrive at a contrary conclusion, once the State Government had taken a decision to cancel the selection process and the resultant appointment. Learned Counsel for the petitioners argues that the power to take disciplinary action and award punishment vests in the appointing authority under Statute 24.02 of the First Statutes of the University and the decision has to be reported by the appointing authority to the District Inspector of Schools (DIOS). The decision does not take effect, unless approved by the DIOS in writing. There is a provision for appeal against the order of the DIOS to the Regional Higher Education Officer. In the present case, it is submitted that there is a blatant violation of the principles of natural justice, because the State Government had taken the effective decision, which they have communicated to the Director (Higher Education) without hearing the petitioners. It is also emphasized that the qualification of the CCC Certificate earned from the DOEACC Society was not the requirement of the law at the point of time when the petitioners were selected. It came later on. Also, the B.Lib. Degree, in case of the Library Clerk, was a preferential qualification and not an essential one.
27. Likewise, in support of Writ-A No.42609 of 2015, Mr. Shivendra Rajwar, Advocate holding brief of Mr. Gautam Baghel, learned Counsel for the petitioners submits that the Authorized Controller, before dispensing with the services of the petitioners, has not bothered to take approval of the DIOS, pursuant to Clause 24.03 of the First Statutes of the University, vitiating the impugned order. It is emphasized by the learned Counsel for the petitioners here that a perusal of the impugned order dated 19.06.2015 would show that there is no specific allegation as regards the petitioners or the selection proceedings, which resulted in their appointment. The order of the State Government is omnibus and blanket. The individual features given in the orders of the Authorized Controller are of no consequence, because the true decision maker in the matter, the State Government, has not considered cases individually. It is also emphasized that in this case, the Chairperson of the selection committee, Dr. Raj Kumar Pathak and two members thereof, to wit, Dr. Lalu Ram Bhardwaj and Dr. Rajendra Baudh, were both arraigned in disciplinary proceedings on charges of nepotism relating to the selection that had led to the petitioners' appointment, but were exonerated after inquiry. Reference in the matter is made to the documents annexed as Annexure No. RA-1 and Annexure No. RA-2 to the rejoinder affidavit. The learned Counsel, therefore, submits that those who comprised the selection committee, having been exonerated of the charges of nepotism, the petitioners' selection cannot be said to be tainted.
28. Mr. Sharad Chandra Upadhyay, learned Standing Counsel appearing on behalf of respondent Nos.1, 2 and 3, has submitted that the inquiry ordered by the State Government into selections and appointments of Class-III and Class-IV employees at the A.P.N. and the Shiv Harsh, was done by two independent and impartial Principals of Government Postgraduate Colleges. Full and fair opportunity was given to those likely to be adversely affected by the outcome of the inquiry. The petitioner, in the leading petition, had a brother of full blood, posted in the Office of the Regional Higher Education Officer, who handled matters relating to District Basti. It is emphasized that the impugned order has been passed after extending due opportunity to the petitioners. There is a reference made to Sections 40 and 58 of the Act of 1973 to submit that the State Government have ample jurisdiction to pass orders cancelling the selection and appointment of Class-III and IV employees made to private aided postgraduate colleges, affiliated to a University, functioning under the Act of 1973. It is conceded that the Act of 1975 would not be applicable. Individual submissions in each of the writ petitions regarding details on facts have been advanced by Mr. Sharad Chandra Upadhyay, who has been at much pains to defend the orders passed by the State Government. Mr. Vivek Kumar Rai, learned Counsel, appearing for the University, has advanced his submissions as well, largely in agreement with what Mr. Upadhyay has submitted on behalf of the State.
29. One of the two principal questions that arise for consideration in this case is, if it was open to the respondents, in this context, the State Government, to cancel the petitioners' appointment on account of the selection process lacking transparency, one undertaken in breach of the lawful procedure and the law, without affording the petitioners' opportunity of hearing. The other question that would arise for consideration is, if the State Government, being neither the petitioners' Appointing Authority nor one competent to grant approval, could direct, on whatever ground, a cancellation of the petitioners' appointment. Both these questions are common to all the writ petitions, including the leading case. In fact, the orders, giving rise to these questions, passed by the State Government and the consequential orders passed by the Director (Higher Education), U.P., are under challenge in all the writ petitions, as earlier noticed in this judgment.
30. The impugned order dated 19.06.2015 passed by the State Government appears to have originated from a notice given by Hon'ble Mr. Sanjay Pratap Jaiswal, Member, Legislative Assembly, on 18.03.2015 in accordance with the Rules of Procedure and Conduct of Business of the Uttar Pradesh Legislative Assembly, 1958. The Director (Higher Education), U.P., Allahabad, acting on the Government's resolve, proceeded to appoint a committee, comprising Dr. Shyam Narayan Singh, Principal, Pt. Ram Lakhan Shukla, Government P.G. College, Alapur, Ambedkar Nagar and Dr. Onkar Prasad, Principal, Ravindra Kishore Shahi Government Degree College, Pathardeva, Deoria, to inquire into allegations of extraneous considerations, involving blood relations in appointments of Class-III and IV employees in the A.P.N. and the Shiv Harsh. This committee went into the allegation of relatives of those, who could influence selections, being appointed and found these vindicated in some cases. They found it vindicated in the case of the petitioner in the leading writ petition, where Ravindra Nath Yadav, a Clerk posted in the office of the Regional Higher Education Officer, Gorakhpur, who handled matters in that office relating to District Basti, is said to have influenced the selection of the petitioner, Ashok Kumar Yadav, his brother of full blood. There are similar cases found vindicated by the two-member committee. There are other allegations vitiating the selection process, including the transparency of selections, the selections being an eyewash, the selections being held with less than three candidates in the fray, the reckoning of marks earned in the Bachelors' Degree, whereas these were irrelevant for the post, besides arbitrariness in the selection done by Professor Sadan Ram, who held both the position of the Regional Higher Education Officer and the Authorized Controller.
31. Acting on this inquiry report, the State Government passed the order impugned dated 19.06.2015, directing termination of services of all Class-III and IV employees in both the A.P.N. and the Shiv Harsh by one stroke of pen. Acting upon the order of the State Government, the Director (Higher Education), U.P., Allahabad passed stereotyped and cyclostyled orders, directing the Regional Higher Education Officer as well as the Authorized Controller/ Principal of the A.P.N. and the Shiv Harsh to cancel appointments of Class-III and IV employees. Here, it must be noticed that the orders passed by the Director (Higher Education), though cyclostyled, in the sense of being identically worded, are not one order in all the cases. These have been made on the same day i.e. 20.06.2015. These are three different orders - one each made in the case of Class-III employees separately relating to the A.P.N. and the Shiv Harsh, and, a third one relating to Class-IV employees appointed to the A.P.N. There is no appointment of a Class-IV employee involved in any of the writ petitions relating to the Shiv Harsh.
32. Consequential orders were then passed, echoing the directions of the State Government by the respective Appointing Authorities in the A.P.N. and the Shiv Harsh on different dates, 'cancelling with immediate effect' the respective appointments of the petitioners in the individual writ petitions. In the leading petition, this order was passed by the Authorized Controller on 22.06.2015. A look at all the orders passed by the Director (Higher Education) and the Appointing Authorities of the petitioners in the various writ petitions would show that neither the Director (Higher Education) nor the Appointing Authorities concerned have applied mind or taken a decision to dispense with the services of the petitioners, styled as 'cancellation of appointment'. The substantial decision has been that of the State Government. The State Government's order is one affecting all the employees in both the Institutions.
33. Now, order of the State Government clearly proceeds on the basis of the inquiry report dated 25.04.2015 submitted by the two-member committee, comprising the Principals of the two Government P.G. and Degree Colleges. A look at the inquiry report dated 25.04.2015 does not spare a shadow of doubt in our mind that it is no more than a fact finding inquiry that the committee were entrusted with. In keeping with their assignment, the committee have held a preliminary inquiry of sorts and expressed opinion for whatever its worth. They have apparently not heard the petitioners in the manner a committee entrusted with returning a finding would. They have generally asked questions of the Principals, the Teachers, the Class-III and IV employees in going about their task on 20.04.2015, when visiting the two college campuses. The committee's report does not clearly offer any opportunity of hearing to any of the petitioners in the sense understood before a finding adverse to an employee's interest is recorded.
34. The State Government has acted on this report to pass the order impugned dated 19.06.2015 ex facie without hearing any of the petitioners. The report of the fact finding committee has been accepted for every word of it, without putting any of the petitioners to notice of the adverse material reported by the committee, affecting their appointments.
35. The petitioners, apparently, are probationers. Though the fact nor the point was mooted by either party during hearing, but we cannot ignore it. The letters of appointment relating to all the petitioners show that they had been appointed on a year's probation. Ex facie, the dispensation of service, styled as cancellation, as already said, has come before confirmation. 'A probationer may be discharged from service without assignment of reason' is a proposition of the law that hardly brooks doubt. The authorities in support of this proposition are: State of Orissa and another v. Ram Narayan Das, AIR 1961 SC 177; Unit Trust of India v. T. Bijaya Kumar Patra, 1992 SCC OnLine SC 586; Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and another, (2002) 1 SCC 520; and, Progressive Education Society and another v. Rajendra and another, (2008) 3 SCC 310. At the same time, it is equally well settled on principle that if a probationer's services are dispensed with on the basis of allegations relating to his conduct, which we think, would extend to those affecting the selection process, he is entitled to a fare and minimum of opportunity to show cause to the Appointing Authority before his services are dispensed with. This is qualified by the principle that the adverse material or allegations must be the foundation of discharge or dispensation of services, and not merely a consideration for the Appointing Authority to generally find the employee unsuitable for the post held. In this connection, reference may be made to State Bank of India and others v. Palak Modi and another, (2013) 3 SCC 607, where it was held:
"25 . The ratio of the abovenoted judgments is that a probationer has no right to hold the post and his service can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post held by him. If the competent authority holds an inquiry for judging the suitability of the probationer or for his further continuance in service or for confirmation and such inquiry is the basis for taking decision to terminate his service, then the action of the competent authority cannot be castigated as punitive. However, if the allegation of misconduct constitutes the foundation of the action taken, the ultimate decision taken by the competent authority can be nullified on the ground of violation of the rules of natural justice."
36. A distinction in this regard has been made in earlier authority between the allegations against the probationer being the 'motive' or the 'foundation' of the action. This test was invented to determine if the order, dispensing with a probationer's services, was stigmatic or innocuous. If it is stigmatic, it would require opportunity; if innocuous, it would not. The motive and the foundation test was evolved to determine if the order of discharge was innocuous or casts stigma upon the probationer discharged from service. Their Lordships of the Supreme Court in Palak Modi (supra) have noticed an earlier authority on the point and observed:
"22. In Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences [(1999) 3 SCC 60 : 1999 SCC (L&S) 596] the two-Judge Bench considered the appellant's challenge to the termination of his service after adverting to the various communications sent by the Head of the Organisation to the appellant and formulated the following points: (SCC p. 70, para 18) "(1) In what circumstances, the termination of a probationer's services can be said to be founded on misconduct and in what circumstances could it be said that the allegations were only the motive?
(2) When can an order of termination of a probationer be said to contain an express stigma?
(3) Can the stigma be gathered by referring back to proceedings referred to in the order of termination?
(4) To what relief?"
While dealing with the first point, the Court referred to various earlier judgments and observed: (Dipti Prakash Banerjee case [(1999) 3 SCC 60 : 1999 SCC (L&S) 596] , SCC pp. 70-72, paras 19 & 21) "19. As to in what circumstances an order of termination of a probationer can be said to be punitive or not depends upon whether certain allegations which are the cause of the termination are the motive or foundation. In this area, as pointed out by Shah, J. (as he then was) in Madan Gopal v. State of Punjab [AIR 1963 SC 531] there is no difference between cases where services of a temporary employee are terminated and where a probationer is discharged. This very question was gone into recently in Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd. [(1999) 2 SCC 21 : 1999 SCC (L&S) 439] and reference was made to the development of the law from time to time starting from Parshotam Lal Dhingra v. Union of India [AIR 1958 SC 36 : 1958 SCR 828] to the concept of 'purpose of enquiry' introduced by Shah, J. (as he then was) in State of Orissa v. Ram Narayan Das [AIR 1961 SC 177] and to the seven-Judge Bench decision in Samsher Singh v. State of Punjab [(1974) 2 SCC 831 : 1974 SCC (L&S) 550 : (1975) 1 SCR 814] and to post-Samsher Singh [(1974) 2 SCC 831 : 1974 SCC (L&S) 550 : (1975) 1 SCR 814] case-law. This Court had the occasion to make a detailed examination of what is the 'motive' and what is the 'foundation' on which the innocuous order is based.
***
21. If findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as 'founded' [Ed.: The word "founded" is emphasised in the original also.] on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid."
(emphasis supplied)
23. In Chandra Prakash Shahi v. State of U.P. [(2000) 5 SCC 152 : 2000 SCC (L&S) 613] the Court considered the correctness of the order passed by the High Court which had allowed the writ petition filed by the State and set aside the order passed by the U.P. Public Services Tribunal for reinstatement of the appellant. The competent authority had terminated the appellant's service in terms of Rule 3 of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975. It was argued on behalf of the appellant that the order by which his service was terminated, though innocuous, was, in fact, punitive in nature because it was founded on the allegation that he had fought with other colleagues and used filthy and unparliamentary language. In the counter-affidavit filed on behalf of the respondents, it was admitted that there was no adverse material against the appellant except the incident in question. The original record produced before the Tribunal revealed that the appellant's service was terminated on account of his alleged involvement in the quarrel between the constables. After noticing various precedents, this Court observed: (SCC pp. 167-68, paras 27-30) "27. The whole case-law is thus based on the peculiar facts of each individual case and it is wrong to say that decisions have been swinging like a pendulum; right, the order is valid; left, the order is punitive. It was urged before this Court, more than once including in Ram Chandra Trivedi case [(1976) 4 SCC 52 : 1976 SCC (L&S) 542] that there was a conflict of decisions on the question of an order being a simple termination order or a punitive order, but every time the court rejected the contention and held that the apparent conflict was on account of different facts of different cases requiring the principles already laid down by this Court in various decisions to be applied to a different situation. But the concept of 'motive' and 'foundation' was always kept in view.
28. The important principles which are deducible on the concept of 'motive' and 'foundation', concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an inquiry is held and it is on the basis of that inquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an inquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that inquiry, the order would be punitive in nature as the inquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of 'motive'.
29. 'Motive' is the moving power which impels action for a definite result, or to put it differently, 'motive' is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which impelled the employer to take this action? If it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary inquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary inquiry.
30. Applying these principles to the facts of the present case, it will be noticed that the appellant, who was recruited as a Constable in the 34th Battalion, Pradeshik Armed Constabulary, U.P., had successfully completed his training and had also completed two years of probationary period without any blemish. Even after the completion of the period of probation under Paragraph 541 of the U.P. Police Regulations, he continued in service in that capacity. The incident in question, namely, the quarrel was between two other constables in which the appellant, to begin with, was not involved. When the quarrel was joined by few more constables on either side, then an inquiry was held to find out the involvement of the constables in that quarrel in which filthy language was also used. It was through this inquiry that the appellant's involvement was found established. The termination was founded on the report of the preliminary inquiry as the employer had not held the preliminary inquiry to find out whether the appellant was suitable for further retention in service or for confirmation as he had already completed the period of probation quite a few years ago but was held to find out his involvement. In this situation, particularly when it is admitted by the respondent that the performance of the appellant throughout was unblemished, the order was definitely punitive in character as it was founded on the allegations of misconduct."
(emphasis supplied)
24. In Union of India v. Mahaveer C. Singhvi [(2010) 8 SCC 220 : (2010) 2 SCC (L&S) 602] the three-Judge Bench considered the question whether termination of the respondent's service who was serving as IFS probationer by way of discharge in accordance with the terms of employment was punitive. The Court noted that the respondent's service was terminated because he had sought extension to join the Mission at Madrid in Spain because of sudden deterioration in the health condition of his parents and also requested for providing medical facilities and diplomatic passports to them. The Court also noted that the Ministry of External Affairs had taken cognizance of the complaint made by one Mrs Narinder Kaur Chadha that the respondent had been threatening her entire family and in particular her daughter which was followed by some enquiries conducted into his conduct or character by the Joint Secretary, Foreign Service Institute and a memorandum was issued to the respondent alleging his unauthorised absence. The Joint Secretary found that the complaint was wholly unfounded. The Court then referred to the principles laid down in earlier judgments and approved the view taken by the High Court that even though the order of discharge did not contain any stigma, the same was not conclusive and the High Court had rightly termed the same as punitive. Some of the observations made in the judgment are extracted below: (SCC p. 233, para 47) "47. The materials on record reveal that the complaint made by Mrs Narinder Kaur Chadha to the Minister of External Affairs had been referred to the Joint Secretary and the Director (Vigilance) on 8-2-2002 with a direction that the matter be looked into at the earliest. Although, nothing adverse was found against the respondent, on 19-2-2002, the Joint Secretary (Vigilance) held further discussions with the Joint Secretary (Admn.) in this regard. What is, however, most damning is that a decision was ultimately taken by the Director, Vigilance Division, on 23-4-2002, to terminate the services of the respondent, stating that the proposal had the approval of the Minister of External Affairs. This case, in our view, is not covered by the decision of this Court in Dipti Prakash Banerjee case [(1999) 3 SCC 60 : 1999 SCC (L&S) 596].""
37. In our opinion, the remarks of their Lordships of the Supreme Court in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, (1999) 3 SCC 60, quoted in Palak Modi would be attracted to the facts of the present case. Relevant remarks are to be found in paragraph No.21 of the report in Dipti Prakash Banerjee (supra) quoted in Palak Modi. This is not a case, where no inquiry was at all held for any reason, whatsoever, to determine the truth of the allegations. An inquiry committee, to hold a preliminary inquiry or fact finding inquiry, was appointed, which forms the basis of the impugned order passed by the State Government. The order on its face refers to allegations vitiating the selection and the consequent appointments made in favour of the petitioners. There are allegations as sticky as nepotism being at play. Bearing this state of record in mind, it is difficult to hold that the order impugned passed by the State Government is one directing a simple discharge of the probationers, to wit, the petitioners. The order of the State Government, to its face, casts a malevolent stigma, shadowing the petitioners' selection and appointments. The orders passed by the Director (Higher Education) and the respective Appointing Authorities are no more than processes to give effect to the State Government's decision carried in the impugned order dated 19.06.2015. This order has been made by the State Government by one stroke of pen, based on allegations that clearly serve as foundation for the order impugned and not merely a motive to direct a dispensation of the petitioners' services. An order of this kind, in our considered opinion, called for opportunity of hearing to be afforded to the petitioners before the decision was taken by the Authority, which directed cancellation of the petitioners' appointment, as it is called.
38. This takes us to the other question, and that is, if the State Government, not being the petitioners' Appointing Authority nor one competent to grant approval, could direct termination of their services.
39. The petitioners' employers are the two Institutions, to wit, the A.P.N. and the Shiv Harsh. These, as already said, are privately managed Institutions, funded by the State. Both the Institutions are engaged in imparting higher education at the postgraduate level. The Appointing Authorities of the petitioners are decidedly the Authorities of the two Institutions. In case of those of the petitioners, who are Class-IV employees, like the petitioners in Writ-A Nos.41708 of 2015 and 42609 of 2015, the Appointing Authority is the Principal of the Institution concerned. In case of Class-III employees, the Appointing Authority is the Manager of the Institution, and, since the managements of both the Institutions were superseded with the Authorized Controller managing their affairs, the Authorized Controller is the Appointing Authority. Mr. Sharad Chandra Upadhyay, learned Standing Counsel along with Mr. Vivek Kumar Rai, learned Counsel appearing for the University, have been at pains to say that the State Government would have authority to direct a termination of service of the petitioners on ground of the tainted and patently illegal selections. We cannot agree. There is no authority of any kind vested in the State Government, to direct a cancellation of appointment of Class-III and IV employees of a private institution of higher learning, the State funding notwithstanding. Section 40 of the Act of 1973 empowers the State Government to cause an inspection to be made, by persons nominated, of any affiliated or associated college of a University, including buildings, laboratories and equipments, to borrow the phraseology of the Statute. It also authorizes the examination of other work conducted or done by such college. There is also authority to cause an inquiry to be made in regard to matters, connected with administration and finances of such institutions/ colleges. After the inspection envisaged under sub-Section (1) of Section 40 has been carried out, the State Government may communicate the conclusions drawn during the inspection or inquiry made, and, may issue directions as to the action to be taken, obliging the management to comply with such directions. The power under sub-Section (4) of Section 40 comes closest to controlling or directing the management of a college, affiliated to a University governed by the Act of 1973, with the kind of powers exercised. Since the power with the State Government is also there to issue directions regarding action to be taken, which the management are obliged to comply with, it has been urged by the learned Standing Counsel that the tainted selections held are within the competence of the State Government to direct a cancellation of.
40. No doubt, the scope of inspection of affiliated and associated colleges under Section 40 extends to clothing the State Government with the power to cause an inquiry in regard to matters connected with the administration and finances, but sub-Section (1) of Section 40 read with sub-Section (4) cannot clearly extend to directing a cancellation of the appointments of Class-III and IV employees of affiliated colleges. The appointment of Class-III and IV employees takes place with prior permission of the Regional Higher Education Officer. It is difficult to read into the wider clause of matters, connected with administration and finances of an affiliated college, the power to cancel appointments or direct a termination of services of individual employees, selected and appointed by a college with due approval of the Regional Higher Education Officer. In support of the legal position that the State Government are conferred with power to direct a cancellation of appointments in affiliated colleges, like the Institutions, no authority, much less a binding precedent, has been cited on behalf of the respondents. The State Government's power of inspection etc., under Section 40 of the Act of 1973, upon the terms of the Statute, has not been found by us as one enabling the Government to direct cancellation of appointment or ordering termination of services of Class-III and IV employees of privately managed and funded colleges, affiliated to Universities. The parties are ad idem that the Act of 1975 is not applicable to Universities and, a fortiori, to their affiliated colleges, like the Institutions, so as to confer upon the State Government power to issue directions of the kind carried in the impugned order by resort to Section 2 of the last mentioned Act. Likewise, the powers under Section 58 of the Act of 1973 are with regard to the affairs of the management and conditions when the management of an affiliated college may be superseded and directed to be taken over by an Authorized Controller. It affords no source of authority to the State Government to terminate the services of individual Class-III and IV employees of an affiliated college or cancel his/ her appointment.
41. This takes us to an allied question as to what are the ways out and means available to the State Government to keep the stream of selections and appointments to the Institutions unsullied by extraneous considerations, which they were confronted with upon a perusal of the fact finding or the preliminary inquiry report. If the State Government thought that there was some flaw relating to one or more of the selections relating to Class-III and IV employees made in the Institutions, that to say, one or more of the petitioners' selection and appointments, they could refer the matter to the Appointing Authority for holding such inquiry, as may be necessary, and pass orders after affording the petitioners' opportunity of hearing. The matter could also be referred to the Higher Education Officer, who had granted approval to the petitioners' appointment and he could likewise hold an inquiry, affording the petitioners some kind of opportunity. Ideally, the validity of the appointments, if at all the Government thought that these were tainted by all the ills that the fact finding inquiry has pointed out, should have been inquired into by the Appointing Authority relating to each of the petitioners under directions of the Higher Education Officer, or with his participation and appropriate orders made, again not without affording the necessary opportunity of hearing. Since the petitioners are apparently probationers, we should not be understood at all to have said that they were entitled to the benefit of regular disciplinary proceedings. A show cause and opportunity to have their say effectively would suffice.
42. It is true that this case involves thirteen appointments of Class-III and IV employees to the two Institutions, to wit, the A.P.N. and the Shiv Harsh. In each case, advertisements were issued and selection committees convened. The report of the fact finding committee submitted to the State Government neither had the remit nor did they do a careful segregation of each case to opine which of them were tainted and which not. The State Government, in passing the impugned order, directed a cancellation of all appointments by one stroke of pen. There was no individual consideration of each case with a bare minimum level of scrutiny and relative finding to come to the conclusion, if it was indeed tainted, flawed and bad. The principle of segregating the tainted selections from the untainted ones, is a well recognized principle, where the purity or the sanctity of the selection process in public employment is doubted. The principle further exposits that individual cases have to be scrutinized unless the taint is so widespread as to soil the entire selection process. An exposition and endorsement of this principle is there in Ajit Singh Patel (supra), where it has been remarked:
"13. The appellants have now relied upon the opinions given by the experts (Indian Institute of Information Technology, Allahabad and Indian Institute of Technology, Kanpur) as noted in the report submitted to this Court dated 20-8-2018 [U.P. Jal Nigam v. Ajit Singh Patel, 2018 SCC OnLine SC 2598]. The same were certainly not available to the appropriate authority before the order was passed on 11-8-2017. Indeed, the appropriate authority took into account two inquiry reports but the same did not evince that an exercise had already been undertaken to distinguish the tainted and untainted candidates or that it was not possible to do so, so as to uphold the decision of declaring the entire selection process as void. Had the appropriate authority done that exercise and recorded its satisfaction in that behalf, to be reflected in the order passed by the Chief Engineer on 11-8-2017, the High Court could have then followed the settled legal position expounded in Union of India v. O. Chakradhar [Union of India v. O. Chakradhar, (2002) 3 SCC 146, paras 7, 8 & 12 : 2002 SCC (L&S) 361] that the nature and extent of illegalities and irregularities committed in conducting a selection will have to be scrutinised in each case so as to come to a conclusion about the future course of action to be adopted in the matter. Further, if the mischief played is so widespread and all-pervasive, affecting the result so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, in such cases, it will neither be possible nor necessary to issue individual show-cause notices to each selectee. In that case, the only option would be to cancel the whole selection process and not limiting to one section of appointees. This view has been restated in the recent decision in Veerendra Kumar Gautam v. Karuna Nidhan Upadhyay [Veerendra Kumar Gautam v. Karuna Nidhan Upadhyay, (2016) 14 SCC 18, paras 57-59 & 61] (also see Joginder Pal v. State of Punjab [Joginder Pal v. State of Punjab, (2014) 6 SCC 644, paras 32-36 & 38-40 : (2014) 2 SCC (L&S) 333] ). The dictum in the two judgments relied upon by the appellants, of O. Chakradhar [Union of India v. O. Chakradhar, (2002) 3 SCC 146, paras 7, 8 & 12 : 2002 SCC (L&S) 361] and Vikas Pratap Singh v. State of Chhattisgarh [Vikas Pratap Singh v. State of Chhattisgarh, (2013) 14 SCC 494 : (2013) 3 SCC (L&S) 100] will be of no avail to the appellants in the fact situation of the present case."
43. In the present case, it has to be borne in mind that it is not one selection process. There are two Institutions, the A.P.N. and the Shiv Harsh. Within the Institutions also, like the A.P.N., there are Class-IV and Class-III posts, to which the selections and appointments have been made. The two processes would be entirely different. Therefore, this possibly cannot be a case where all the selections would be affected by the same taint so drastically as to call for a wholesome countermanding of all selections and appointments by an omnibus order.
44. The last question that needs to be considered is what relief is to be afforded to the petitioners. They were after all probationers, when their services were dispensed with in consequence of the impugned order of cancellation passed by the State Government and the consequential orders. They have hardly worked for a few months - in most cases, a period of three months approximately. Once the impugned orders are quashed, which has to be done with liberty to the appropriate Authorities to hear the individual petitioners and make fresh orders, would the petitioners be entitled to an automatic reinstatement in service? We do not think so. Reference in this connection may be made to the decision of the Supreme Court in Inspector of Panchayats and District Collector, Salem v. S. Arichandran and others, 2022 SCC OnLine SC 1282. In that case, the High Court had set aside the order of dismissal passed by the Disciplinary Authority on ground of breach of principles of natural justice, the breach being that the delinquent had not been furnished a copy of the inquiry report and given opportunity to put in his comments before the order of dismissal was passed. The delinquent was ordered by the learned Single Judge of the High Court to be reinstated in service with back-wages. The judgment was affirmed by the Division Bench in appeal. As it appears from the report of the judgment of their Lordships of the Supreme Court, the delinquent was ordered to be reinstated, without remitting the matter to the Disciplinary Authority to proceed afresh from the point that the breach was committed and natural justice violated. It was in this context that it was held by the Supreme Court in S. Arichandran (supra):
"14. At the outset, it is required to be noted that the learned Single Judge has set aside the order of dismissal passed by the Disciplinary Authority on the ground that the same was in breach of principles of Natural Justice, in as much as, the copy of the Inquiry Officer's Report was not furnished to the delinquent and his comments were not called for on the Inquiry Officer's Report. It is to be noted that the respondent - delinquent was facing the departmental inquiry with respect to a very serious charge of misappropriation. Therefore, the High Court ought to have remitted the matter back to the Disciplinary Authority to conduct the inquiry from the point that it stood vitiated.
15. At this stage, a recent decision of this Court in the case of Rajit Singh (supra), in which this Court had considered its earlier decision in the case of A. Masilamani (supra) is required to be referred to. In paragraph 15, it is observed and held as under:--
"15. It appears from the order passed by the Tribunal that the Tribunal also observed that the enquiry proceedings were against the principles of natural justice in as much as the documents mentioned in the charge sheet were not at all supplied to the delinquent officer. As per the settled proposition of law, in a case where it is found that the enquiry is not conducted properly and/or the same is in violation of the principles of natural justice, in that case, the Court cannot reinstate the employee as such and the matter is to be remanded to the Enquiry Officer/Disciplinary Authority to proceed further with the enquiry from the stage of violation of principles of natural justice is noticed and the enquiry has to be proceeded further after furnishing the necessary documents mentioned in the charge sheet, which are alleged to have not been given to the delinquent officer in the instant case. In the case of Chairman, Life Insurance Corporation of India v. A. Masilamani, (2013) 6 SCC 530, which was also pressed into service on behalf of the appellants before the High Court, it is observed in paragraph 16 as under:--
"16. It is a settled legal proposition, that once the court sets aside an order of punishment, on the ground that the enquiry was not properly conducted, the court cannot reinstate the employee. It must remit the case concerned to the disciplinary authority for it to conduct the enquiry from the point that it stood vitiated, and conclude the same. (Vide ECIL v. B. Karunakar [(1993) 4 SCC 727], Hiran Mayee Bhattacharyya v. S.M. School for Girls [(2002) 10 SCC 293], U.P. State Spg. Co. Ltd. v. R.S. Pandey [(2005) 8 SCC 264] and Union of India v. Y.S. Sadhu [(2008) 12 SCC 30])."
45. Also of relevance to the issue is the holding of the Supreme Court in State of Uttar Pradesh and others v. Rajit Singh, (2022) 15 SCC 254, wherein the following remarks of their Lordships are pertinent:
"11. It appears from the order passed by the Tribunal that the Tribunal also observed that the enquiry proceedings were against the principles of natural justice inasmuch as the documents mentioned in the charge-sheet were not at all supplied to the delinquent officer. As per the settled proposition of law, in a case where it is found that the enquiry is not conducted properly and/or the same is in violation of the principles of natural justice, in that case, the Court cannot reinstate the employee as such and the matter is to be remanded to the enquiry officer/disciplinary authority to proceed further with the enquiry from the stage of violation of principles of natural justice is noticed and the enquiry has to be proceeded further after furnishing the necessary documents mentioned in the charge-sheet, which are alleged to have not been given to the delinquent officer in the instant case."
46. There are some remarks of great relevance in Allahabad Bank and others v. Krishan Pal Singh, (2021) 19 SCC 227, which are as follows:
"8. The directions issued by the High Court of Allahabad for reinstatement were stayed by this Court on 23-8-2019 [Allahabad Bank v. Krishan Pal Singh, 2019 SCC OnLine SC 2061]. During the pendency of these proceedings, the respondent workman had attained age of superannuation. Though, there was strong suspicion, there was no acceptable evidence on record for dismissal of the workman. However, as the workman has worked only for a period of about six years and he has already attained the age of superannuation, it is a fit case for modification of the relief granted by the High Court. The reinstatement with full back wages is not automatic in every case, where termination/dismissal is found to be not in accordance with procedure prescribed under law. Considering that the respondent was in effective service of the Bank only for about six years and he is out of service since 1991, and in the meantime, respondent had attained age of superannuation, we deem it appropriate that ends of justice would be met by awarding lump sum monetary compensation. We accordingly direct payment of lump sum compensation of Rs 15 lakhs to the respondent, within a period of eight weeks from today. Failing to pay the same within the aforesaid period, the respondent is entitled for interest @ 6% p.a., till payment."
(emphasis by Court)
47. In a case where an order of termination from service, whether by way of cancellation of appointment or in consequence of disciplinary proceedings, has to be quashed on grounds of violation of principles of natural justice, there are, in the opinion of this Court, very pertinent factors to be taken into consideration, if reinstatement is to be ordered pending the resumed inquiry. It goes without saying that invariably, wherever an order of termination from service is passed in breach of principles of natural justice, the matter has to be remitted to the employers to take fresh proceedings from the stage, where they have faltered. Of course, that is an election to be left to the employers and not a position thrust upon them that they must re-inquire. The question if in the interregnum, when proceedings are resumed post remand to the employers, the employee is to be reinstated or not, may not always have a fixed answer. If the employee was serving on a permanent tenure for a long number of years and has had his services terminated in utter violation of principles of natural justice, the question of reinstatement pending inquiry may invariably be answered for the employee. The nature and gravity of the charges, on which the action has been taken, would also be relevant. In the consequences of quashing of the order of termination in Krishan Pal Singh (supra), one reason that weighed with the Supreme Court in denying reinstatement with full back-wages, the question of superannuation apart, was the short period of six years, for which the employee had served. Here, the petitioners are all probationers, whom we have already noticed, have served for a few months alone. They have been out of service since the year 2015, after that short probation of some months that they were in service.
48. In the circumstances, therefore, we would think that notwithstanding the orders impugned being fit to be quashed with liberty to the competent Appointing Authority to proceed afresh against the petitioners, they would not be entitled to reinstatement in service unless upon inquiry, as directed hereinafter, the respondents conclude in the petitioners' favour, or they elect in one or more case not to proceed afresh at all.
49. In the result, all the writ petitions succeed and are allowed. The orders impugned passed by the State Government and the Director (Higher Education), U.P., Allahabad and each of the orders impugned passed in the individual petitions by the Appointing Authority, are hereby quashed. The competent Appointing Authority in each individual case of the petitioners, subject, of course, to the supervision of the Regional Higher Education Officer, shall be at liberty to proceed afresh against the petitioners after granting them effective opportunity of hearing regarding whatever flaw in the selection process is found to taint each individual petitioner's selection. If after granting opportunity, the case of any of the petitioners is found to be without a vitiating flaw in the matter of appointment, the petitioner concerned would be entitled to reinstatement in service on the same terms as he was serving at the time that the impugned orders were passed. If in a given case the Appointing Authority concerned, under the supervision of the Regional Higher Education Officer, does not find it fit to inquire into the validity of the selection process and appointment, the petitioner concerned shall be entitled to reinstatement in service on the same terms. It is also made clear that upon quashing of the order alone, there would not be any automatic reinstatement for any of the petitioners. It is clarified that the Appointing Authority concerned in each individual case shall act under supervision of the Regional Higher Education Officer, but in the exercise of their independent discretion. They will not be influenced by any direction of the State Government carried in the impugned order or any further order made by them in the matter.
50. There shall be no order as to costs.
Order Date :- 19.8.2025 Anoop (J.J. Munir) Judge