Neutral Citation No. - 2025:AHC-LKO:21848 Court No. - 3 Case :- WRIT - A No. - 1769 of 2025 Petitioner :- Dr. Gyanendra Kumar Respondent :- State Of U.P. Thru. Prin. Secy. Lko. And 3 Others Counsel for Petitioner :- Indu Prakash Singh,Shubham Singh Counsel for Respondent :- C.S.C.,Anshu Singh,Krishna Kumar Singh,Ravi Singh Sisodiya Hon'ble Rajesh Singh Chauhan,J. In Re:- C.M.A. No. 6 of 2025, i.e., Application for Withdrawal of Vakalatnama This application has been filed by Sri Ravi Singh Sisodiya and Ms. Ritika Singh Sisodiya, Advocates, who have filed vakalatnama for the opposite party no. 4 but the opposite party no. 4 who is the deponent of the aforesaid application has stated that he wants to disengage the aforesaid counsels. No reasons have been indicated disengaging the above named counsels and those counsels are not present, therefore, considering the fact that the opposite party no. 4 himself is disengaging those counsels, the vakalatnama of the aforesaid counsels, namely, Sri Ravi Singh Sisodiya and Ms. Ritika Singh Sisodiya is treated to have been withdrawn. Accordingly, the aforesaid application is allowed. In Re:- C.M.A. No. 5 of 2025, i.e., Application for Impleadment Heard Sri Rishi Kumar, learned counsel for the impleadment seeker. The aforesaid application has been signed by Sri Ravi Singh Sisodiya, learned Advocate and it has been informed by Sri Rishi Kumar that Sri Ravi Singh Sisodiya is the Standing counsel of Rajarshi Dashrath Autonomous State Medical College Ayodhya (hereinafter referred as 'Medical College') for Lucknow Bench. Sri Rishi Kumar has stated that since the issue in question is related to the aforesaid Medical College and Medical College has not been impleaded in the array of opposite parties, therefore, such Medical College is a necessary party. Notably, by means of this petition, the petitioner has assailed the impugned order dated 16th January 2025, whereby, he has been attached in the office of Director General Medical Education and Training, Lucknow till completion of the enquiry, which is going on against him and the opposite party no. 4 has been given charge of the officiating Principal of the aforesaid Medical College. If the medical College in question is having one officiating Principal, who is private responded herein and such exercises have been undertaken by the authorities of the State Government, therefore, the Medical College in question may not be affected if any order is passed in this writ petition. Besides, the officiating Principle of the Medical College has already been impleaded as opposite party no. 4, and who is being represented by the by his counsel, Sri Krishna Kumar Singh, who has filed vakalatnama before this Court on 12.02.2025, which has not been withdrawn by the private opposite party. Therefore, in view of the given circumstances and at this stage, I do not find that the Medical College in question should be a necessary party, particularly, in view of the fact that I have heard learned counsel for the parties at length and perused the original record summoned on earlier date. Therefore, the application for impleadment is rejected. Order on Writ Petition 1. Heard Sri Indu Prakash Singh, learned counsel for the petitioner, Sri Shailendra Kumar Singh, learned Chief Standing Counsel assisted by Sri Vivek Shukla, learned Additional Chief Standing Counsel, Sri Krishna Kumar Singh, learned counsel for the opposite party no. 4 and Sri Rishi Kumar who has appeared on behalf of the impleadment seeker. 2. Sri I.P. Singh has filed supplementary affidavit, the same is taken on record. 3. Sri Krishna Kumar Singh, learned counsel for the opposite party no. 4 has stated that he has not filed any affidavit in this case and the short counter affidavit which has been filed on behalf of the opposite party no. 4 has been filed by the earlier counsels without getting no objection from him, so he is not supporting the short counter affidavit filed on 06.03.2025 by earlier counsels. 4. Sri Shailendra Kumar Singh, learned Chief Standing Counsel has shown the copy of the instructions werein this much has been indicated that the enquiry against the petitioner is pending before the Lok Ayukta, U.P. On being asked from learned Chief Standing Counsel that when that enquiry would be concluded, he has stated on the basis of instruction that the enquiry would be completed with expedition strictly in accordance with law. Sri Shailendra Kumar Singh has also shown the bylaws of Autonomous State Medical College, Bahraich / Basti / Faizabad / Firozabad /Shahjahanpur, U.P. referring bylaw 30(7) which provides about appointment and selection of Principal indicating that during the pendency or in contemplation of any enquiry referred in sub-Section 6, the Chairperson may order that till further orders, the Principal shall refrain from performing functions of office of Principal. He has also shown the Autonomous State Medical Colleges Uttar Pradesh Principals and Teachers (Recruitment and Other Condition of Service) Model Rules, 2020 (hereinafter referred as 'Model Rules, 2020') referring Rule 12.6, which also provides the same that such Principal shall refrain from performing the functions of the office of Principal if any enquiry is pending. 5. On the first date of admission, this Court has passed an order dated 12.02.2025, which reads as under:- "1. Vakalatnama filed by Shri Krishna Kumar Singh, Advocate on behalf of respondent No.4 is taken on record. 2. Heard. 3. Under challenge is the order dated 16.01.2025, a copy of which is Annexure-1 to the petition, whereby the petitioner while working as the Principal of the Autonomous State Medical College, Ayodhya has been attached to the office of Director General, Medical Education and Training, Lucknow. The order has been passed by the Principal Secretary, Medical Education, Government of U.P. i.e. respondent No.1. 4. Contention of the learned counsel for the petitioner is that the petitioner had been appointed as a Principal vide order dated 28.07.2023 of the Autonomous State Medical College, Ayodhya. He continued working when by means of the order dated 16.01.2025 he has been attached. 5. The argument is that keeping in view the settled proposition of law there cannot be any attachment of an employee rather in case the respondents are of the view that a person should not work at a particular post it is always open to the concerned authority to transfer the employee concerned but by no stretch of imagination, the attachment order can be said to be valid. 6. Other argument is that as per Clause 7 of the bye laws of the Autonomous State Medical College, Ayodhya, the Board of Governors compromises of the Minister of Medical Education, Government of U.P. who is Chairman (Ex Officio) and the Additional Chief Secretary/Principal Secretary/Secretary, Medical Education is the Vice Chairperson (Ex Officio). In terms of the Clause 17 of the bye laws all the orders of the chairperson are to be communicated to the member Secretary of the Society under the signature of Vice Chairperson, in this case, the respondent No.1 who is Vice Chairperson. However, a perusal of the order impugned would indicate that the said order has been passed by the Principal Secretary in his own capacity and not by the Vice Chairperson (Ex Officio) which thus vitiates the impugned order. 7. The other contention is that in order to relieve the petitioner in the relieving order, instead of the petitioner signing against his name some other Doctor has signed. 8. Learned Standing Counsel prays for and is granted a week's time to seek instructions in the matter. 9. List this case in the next week as fresh. 10. Till the next date of listing no coercive action shall be taken against the petitioner in pursuance of the order impugned. 11. Whenever the case is next listed, name of Shri Krishna Kumar Singh, Advocate be indicated as Counsel for the Respondent No.4. " 6. Sri Shailendra Kumar Singh learned Chief Standing Counsel has submitted that he has already shown the relevant records to the Court to convince that the impugned order has been passed, strictly in accordance of the bylaws 17 inasmuch as the impugned order has been passed under the instructions and direction of Chairperson of the Society who is departmental Minister and signatory of the order is Principal Secretary of the Department under the capacity of Vice Chairperson of the Society. Sri Shailendra Kumar Singh has fairly admitted that in the impugned order dated 16th January 2025, this fact was not indicated inasmuch as the Principal Secretary of the department indicated his designation instead of indicating Vice Chairman of the Society in question. 7. Sri Shailendra Kumar Singh has stated that since the designation of the authority has not been indicated correctly, but for that reason alone, the impugned order may not be treated as non-est in the eyes of law. In support of the aforesaid contention, Sri Shailendra Kumar Singh has referred paragraph 9 of the dictum of Apex Court in Re:- N. Mani Vs. Sangeetha Theatre and Others, (2004) 12 SCC 278, which reads as under:- "It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law." 8. He has also referred the judgement of Apex Court in Re:- Chandra Singh And Others Vs. State of Rajasthan and Another, (2003) 6 SCC 545, referring paragraph 43, whereby, the Apex Court has observed that if the order impugned has been passed in an irregular manner, though it was otherwise lawful, should not be struck down by the superior courts under Article 226 and 32 of the Constitution of India. 9. Per contra, Sri I.P. Singh, learned counsel for the petitioner has referred various judgements of Supreme Court by submitting that if the bylaws provide the specific mechanism and direction to pass the order by the concerning authorities, such order must be passed by the concerning authority, and if that fact has been admitted by the Chief Standing Counsel, that would vitiate the impugned order and therefore, the same should have been set-aside/quashed. He has also stated that by passing a subsequent order dated 14th April 2025, modifying/clarifying the order dated 16th January 2025, the illegality committed earlier may not be rectified inasmuch as the impugned order dated 16th January 2025 is very well in existence. As per Sri I.P. Singh, if the opposite parties were willing to rectify the illegality committed earlier, the order dated 16th January 2025 should have been withdrawn and fresh order should have been passed. He has also submitted that the private opposite party has taken charge of officiating principal from one Dr Paras, however, in such charge certificate, the name of the petitioner has been indicated. Therefore, no one can sign on charge certificate on behalf of the petitioner. 10. Replying the aforesaid contention, Sri Shailendra Kumar Singh has shown one application dated 3rd January 2025 of the petitioner preferred to the Principal Secretary, Medical Education Department, whereby, he had requested for earned leave with effect from 3rd January 2025 till 19th January 2025 (however, the date has wrongly been indicated as 19th January 2024), giving his charge to one Dr. Paras, Professor and Head of Pathology Department. Therefore, when the charge was taken on 15th January 2025 by the opposite party no. 4, the petitioner was on leave and one Dr. Paras was holding that charge. 11. Learned counsel for the petitioner has also submitted that after receiving the explanation/letter from the office of Lok Ayukta, the petitioner submitted a detailed reply/explanation as those explanations have been enclosed with the writ petition. He has also submitted that the petitioner has also preferred the correspondences to the competent authorities regarding the enquiry pending against him, showing his bonafide, but no final decision has been taken till date. He has also submitted that one false and misconceived First Information Report was lodged against him, wherein, he got interim order from this Court vide order dated 3rd December 2024 in Writ-A No. 9211 of 2024. Therefore, Sri I.P. Singh has reiterated that since the order impugned has been passed by the authority who was not having jurisdiction to pass such order and this fact has not been disputed by the State authorities, therefore, that order may be set-aside/quashed. He has also reiterated that by means of office memo dated 15th April 2025, the error committed in the impugned order dated 16th January 2025 may not be rectified. 12. Sri I.P. Singh has placed reliance on Bachhittar Singh vs The State Of Punjab, AIR 1936 SC 395, Govenment of A.P. and Anrs. Vs. Road Rollers Owners Welfare Association and Anr, (2004) 6 SCC 210, State of Jharkhand and Anrs Vs. Govind Singh, (2005) 10 SCC 437, B. Premanand & Ors Vs. Mohan Koikal & Ors, (2011) 4 SCC 266, State of Uttranchal & Anr Vs. Sunil Kumar Vaish and Ors, Civil Appeal No. 5374 of 2005-order dated 06.08.2011 and Estate Officers Vs. Charanjit Kaur, (2022) 13 SCC 475, by reiterating with vehemence that if anything has been prescribed under the bylaws to do the acts, those acts must be done strictly as per the procedure prescribed but in this case, admittedly, the acts have not been done by the authorities as per by-laws, so the impugned order is nullity in the eyes of law and hence liable to be set-aside. 13. Sri Singh has also submitted that the private opposite party has enclosed one enclosure which appears to be confidential so he may be asked the source from which he obtained that order. As per Sri Singh, the private opposite party is hand in gloves with the Government authorities. 14. Having heard learned counsel for the parties and having perused the material available on record, since this fact has not been disputed by the petitioner that some enquiry is pending before the Lok Ayukta, U.P. inasmuch as the petitioner has himself submitted his explanation before such authority showing his bonafide and such enquiry has not been concluded till date. Therefore, in view of the bylaws no. 30(6)7 as well as Rule 12.6 of Model Rules, 2020, the petitioner may refrain from performing the functions of the office of Principal till conclusion of enquiry. 15. So far as the subsequent office memorandum dated 15th April 2025, modifying/clarifying the impugned order dated 16th January 2025 is concerned, I am of the considered opinion that such modification/clarification has been issued strictly as per the material available on the original records inasmuch as the impugned order dated 16th January 2025 was issued under the instruction and direction of the departmental Minister who is Deputy Chief Minister and Chairman of the Society also and such order to that effect has been issued by the Principal Secretary of Medical Education who is having authority to pass such order in a capacity of Vice Chairman of the Society. In view of the law laid down by the Apex Court in N. Mani (Supra) and Chandra Singh (Supra), the impugned order may not be set-aside/quashed for the reason that the designation of the authority has not been indicated properly, though the authorities are having power and jurisdiction to pass such order. Therefore, the case laws so cited by Sri Singh would not be applicable in this case. 16. Before parting with, I would like to observe that while passing any order the authority concerned, be it State authority or instrumentality thereof must remain careful to see as to whether such order is passed strictly in accordance with law/rules/regulation/circular/Government order/bylaws etc. In the present case, this fact is undisputed that the order impugned is irregular order, but such irregularity may not vitiate the sanctity of the impugned order for the reason that the competent authority without indicating his appropriate designation has passed the order and as per the original records, such order has been passed under the authority and direction of the Chairman of the Society, who is the departmental Minister. 17. So far as the argument and submission of Sri Singh regarding one confidential order having been filed by the private opposite party is concerned, it may be observed that the manner under which the short counter affidavit has been filed by that opposite party enclosing some annexures which prima facie appears to be confidential and are not directly related to that opposite party is not appreciated. These annexures might have been filed by Government authorities along with affidavit. On a specific query to that effect, no satisfactory explanation could come forth from any opposite parties. Since, this very fact does not make the impugned order dated 16.01.2025 non-est or nullity in the eyes of law, as considered above, so no further explanation is required thereon but a note of caution is issued to the State authorities to remain careful upkeeping their documents. 18. Since, the petitioner has been attached in the office of Director General Medical Education and Training, Lucknow, till completion of the enquiry with full salary and that order could have been passed under the law as referred above, so I am not inclined to interfere the impugned order dated 16th January 2025, but at the same time, it is expected that pending enquiry be concluded with expedition strictly in accordance with law by affording opportunity of hearing to the petitioner subject to his proper corporation. 19. Sri I.P. Singh learned counsel for the petitioner has also informed at this stage that after passing the impugned order dated 16th January 2025, the petitioner has not been paid salary without assigning any reason. Considering the aforesaid submission of Sri I.P. Singh, it is hereby directed that if the petitioner has not been paid salary with effect from the date of passing the impugned order, the same shall be paid to him forthwith, preferably, within a period of 15 days from the date of production of certified copy of this order inasmuch as without any cogent or plausible reason which is permissible under the law, the salary of an employee may not be stopped. 20. Accordingly, the writ petition is dismissed. Order Date :- 17.4.2025 Anurag Digitally signed by :- ANURAG SINGH High Court of Judicature at Allahabad, Lucknow Bench