# Anand Kumar v. State of U.P. & Ors

- **Citation:** (2025) 1 ILRA 298
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-29
- **Case number:** Writ A No. 23739 of 2021
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anand-kumar-v-state-of-u-p-ors-52981
- **Pages:** 9

## Headnote

Service Law-The Uttar Pradesh Public
Service
Commission,
Rules,
2016---
Petitioner initially appointed on contract basis in
the Nagar Nigam in the year 1998. The
Government order dated 23.07.2012 was issued
for terminating the services of the employees
engaged
in
an
irregular
manner/contract/temporary
basis---In
the
meanwhile the Rules, 2016 had been issued for
regularization and the petitioner being found
eligible for regularization, was regularized vide
order dated 23.06.2021--- Persons who are
continuing even after the date of promulgation
of the Rules i.e 12.09.2016, a right stood
crystallized in such contractual employees to be
considered for regularization of their service on
the basis of the Rules, 2016. Admittedly, the
petitioner was continuing in service on the date
of promulgation of the Rules i.e 12.09.2016 and
thus he was correctly regularized vide order
dated 23.06.2021---Once the petitioner already
stood regularized there was no occasion for a
Government order dated 28.07.2021 to be
issued indicating that the regularization was
subject to decision of the special appeal, so far
as it pertains to the petitioner and for that
matter for the consequential impugned order
dated 26.08.2021 to be issued by the Nagar
Nigam cancelling the regularization order of the
petitioner---So far as the ground that no post is
now lying vacant on which the petitioner can
continue as urged by the respondents, the said
ground is found to be patently misconceived
inasmuch as the regularization order of the
petitioner dated 23.06.2021 itself indicates that
the petitioner has been regularized against a
vacant post of Lighter/Porter in the pay scale of
Rs.5200-20200 and thus if at this stretch of
time, no post is lying vacant, the same will not
effect the case of the petitioner---Impugned
orders quashed--- Petition allowed. (Para 33
& 37) (E-15)

List of Cases cited:

1.Writ Petition No. 6755 (S/S) of 2012 in re:
Vinay Kumar Shukla & ors. Vs St. of U.P. & ors.

## Text

298 INDIAN LAW REPORTS ALLAHABAD SERIES
are annexures 1 & 2 to the writ petition
respectively so far as they direct for
recovery of the excess amount from the
petitioners in categories (B) & (C) are
quashed.

49. Consequences to follow.

44.
The
Court
records
the
assistance of Mr. Mohd. Azam Siddiqui,
Research Associate of this Court.
----------
(2025) 1 ILRA 298
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.01.2025

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ A No. 23739 of 2021
With
Writ A No. 22141 of 2021

Anand Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ghaus Beg

Counsel for the Respondents:
C.S.C., Namit Sharma, Shailendra Singh
Chauhan

Service Law-The Uttar Pradesh Public
Service
Commission,
Rules,
2016---
Petitioner initially appointed on contract basis in
the Nagar Nigam in the year 1998. The
Government order dated 23.07.2012 was issued
for terminating the services of the employees
engaged
in
an
irregular
manner/contract/temporary
basis---In
the
meanwhile the Rules, 2016 had been issued for
regularization and the petitioner being found
eligible for regularization, was regularized vide
order dated 23.06.2021--- Persons who are
continuing even after the date of promulgation
of the Rules i.e 12.09.2016, a right stood
crystallized in such contractual employees to be
considered for regularization of their service on
the basis of the Rules, 2016. Admittedly, the
petitioner was continuing in service on the date
of promulgation of the Rules i.e 12.09.2016 and
thus he was correctly regularized vide order
dated 23.06.2021---Once the petitioner already
stood regularized there was no occasion for a
Government order dated 28.07.2021 to be
issued indicating that the regularization was
subject to decision of the special appeal, so far
as it pertains to the petitioner and for that
matter for the consequential impugned order
dated 26.08.2021 to be issued by the Nagar
Nigam cancelling the regularization order of the
petitioner---So far as the ground that no post is
now lying vacant on which the petitioner can
continue as urged by the respondents, the said
ground is found to be patently misconceived
inasmuch as the regularization order of the
petitioner dated 23.06.2021 itself indicates that
the petitioner has been regularized against a
vacant post of Lighter/Porter in the pay scale of
Rs.5200-20200 and thus if at this stretch of
time, no post is lying vacant, the same will not
effect the case of the petitioner---Impugned
orders quashed--- Petition allowed. (Para 33
& 37) (E-15)

List of Cases cited:

1.Writ Petition No. 6755 (S/S) of 2012 in re:
Vinay Kumar Shukla & ors. Vs St. of U.P. & ors.

2. Writ petition No. 4334 (S/S) of 2012 in re:
Neeraj Babu Vs St. of U.P. & ors.

3. Special Appeal (Defective) No. 96 of 2018 in
re: Umesh Chandra Yadav Vs St. of U.P. & ors.

4. Writ Petition No. 18342 (S/S) of 2020 in re:
Ajay Bajpai & Ors. Vs St. of U.P. & ors.

5. Writ Petition No.2983 (S/S) of 2020 in re:
Irfan Affas & ors. Vs St. of U.P. & ors..

6. Special Appeal (Defective) No. 284 of 2021 in
re: Shiv Kumar & ors. Vs St. of U.P. & ors.

7. Special Leave Petition (Civil) Diary No. 18904
of 2023 in re: Nagar Ayukta Lucknow Nagar
1 All. Anand Kumar Vs. State of U.P. & Ors.
299
Nigam Lucknow U.P. & anr.Vs Umesh Chandra
Yadav & ors.

8. Central Council for Research in Ayurvedic
Sciences & anr.Vs Bikartan Das & ors.- (2023)
SCC OnLine SC 996

(Delivered by Hon'ble Abdul Moin, J.)

1. Heard Shri Ghaus Beg, learned
counsel for the petitioner, learned Standing
Counsel for the respondent nos. 1 and 2,
Shri Namit Sharma along with Shri
Shailendra
Singh
Chauhan,
learned
counsels for the respondent nos. 3, 4 and 5.

2. Learned counsels appearing on
behalf of the contesting parties contend that
the issue involved in both the writ petitions
is same. As such, the Court proceeds to
hear and decide both the writ petitions
together by a common order. For the sake
of convenience, the facts of Writ - A No. -
23739 of 2021 are being taken into
consideration.

3. This is a peculiar case and
peculiarities are indicated in the body of the
judgment.

4. Instant petition has been filed
praying for following main reliefs :-

"i. issue a writ, order or direction
in the nature of certiorari quashing the
impugned
office
memorandum
No.358/मु०ब्व०/ब्वब्वध dated 26.8.2021 passed
by the opposite party No.3 and, impugned
letter/ order dated 28.7.2021 issued by the
opposite party No.1, as contained in
Annexure No.1 and 2 respectively to writ
petition.

ii. issue a writ, order or direction
in the nature of certiorari quashing the oral
termination order dated 1.9.2021 passed by
the opposite party No.3.

iii. issue a writ, order or direction in
the nature of mandamus commanding the
opposite parties to allow the petitioner to work
and discharge duties on the post of Lighter/
Porter (Class-IV post) in Street Light
Department of Nagar Nigam, Lucknow and
pay him salary regularly in pursuance to the
regularization
order
dated
23.6.2021
(Annexure No. 13 to the writ petition)."

5. Bereft of unnecessary details, the
facts of the case are that the petitioner was
initially appointed on a contract basis in
Nagar Nigam, Lucknow on 01.09.1998 and
had continued for sufficiently long time. A
Government Order dated 23.07.2012 was
issued by Principal Secretary, Government of
Uttar Pradesh and addressed to all District
Magistrates, all Municipal Commissioners,
etc. for terminating the services of the
employees engaged in an irregular manner or
on contract/temporary basis.

6. The said Government Order was
challenged by the petitioner along with
several others by filing various writ
petitions. The writ petition filed by the
petitioner is Writ Petition No. 6755 (S/S)
of 2012 in re: Vinay Kumar Shukla & 32
Ors. Vs. State of U.P. and Ors.

7. All the writ petitions were decided
by means of judgment and order dated
02.02.2018 leading being writ petition No.
4334 (S/S) of 2012 in re: Neeraj Babu Vs.
State of U.P. and Ors whereby the writ
petitions were dismissed. The copy of the
judgment and order dated 02.02.2018 is
Annexure No. 10 to the petition. However,
despite dismissal of writ petition, the
petitioner continued to work and discharge
duties under the respondents.

8. Certain persons, being aggrieved by
the said judgment, filed various special
300 INDIAN LAW REPORTS ALLAHABAD SERIES
appeals. One of the Special Appeals was
Special Appeal (Defective) No. 96 of 2018
in re: Umesh Chandra Yadav Vs. State
of U.P. and Ors. The Division Bench of
this Court, vide order dated 14.03.2018, a
copy of which is Annexure No. 11 to the
petition, directed for maintenance of status
quo as it existed on the date of judgment of
the writ Court to be continued to be
maintained.

9. Incidentally, the petitioner did not
prefer any special appeal challenging the
judgment and order dated 02.02.2018 at
that stretch of time.

10. Subsequent thereto, in the year
2020 the petitioner filed Writ Petition No.
18342 (S/S) of 2020 in re: Ajay Bajpai &
Ors. Vs. State of U.P. and Ors., in which
the petitioner was petitioner no. 4, praying
for a direction to the respondent no.1 i.e.
the State to take decision for creation of
supernumerary posts for the regularization
of the petitioners' services working in the
street
light
department
of
Lucknow
considering
the
provisions
of
U.P.
Regularization of Persons working on
Daily Wages or Work Charged or on
Contract in Government Departments on
Group - C and Group D Posts (outside the
Purview
of
U.P.
Public
Service
Commission) Rules, 2016 (hereinafter
referred to as "Rules, 2016").

11. The writ petition was disposed of
vide order dated 22.10.2020, a copy of
which is Annexure No. 12 to the petition,
with
a
direction
to
the
Municipal
Commissioner, Nagar Nigam, Lucknow to
take a decision on the representation of the
petitioners taking into consideration the
judgment and order dated 04.02.2020
passed by this Court in Writ Petition
No.2983 (S/S) of 2020 in re: Irfan Affas
and others vs. State of U.P. and others.

12.
In
pursuance
thereof,
the
respondent - Nagar Nigam, Lucknow
passed an order dated 23.06.2021, a copy
of which is Annexure No. 13 to the
petition, whereby the service of the
petitioner was regularized on a vacant post
of Lighter/Porter in the Pay Scale of Rs.
5200-20200/- and Grade Pay of ₹ 2400/-
with effect from 23.06.2021.

13. In the meanwhile, the State
Government issued the order impugned
dated 28.07.2021 directing the Nagar
Nigam to modify the regularisation orders
already issued by indicating that the said
regularisation would be subject to the final
order passed in the special appeal.

14.
Strangely,
despite
his
regularization
on
23.06.2021,
the
petitioner preferred a Special Appeal
(Defective) No. 284 of 2021 in re: Shiv
Kumar and Others Vs. State of U.P.
and Others, on 17.08.2021 in which the
petitioner was appellant no. 3. However,
the
said
appeal
was
dismissed
as
withdrawn
in
view
of
changed
circumstances
vide
order
dated
19.08.2021, a copy of which is Annexure
No. 16 to the petition.

15. The matter may have attained a
quietus thereto but for the fact that the
respondents, vide order dated 21.08.2021, a
copy of which is Annexure No. 15 to the
petition, considering an order that had been
issued by the State Government, directed
the
petitioner
to
submit
papers
or
documents pertaining to the special appeal
that he might have filed against the order of
the writ Court of the year 2018.
1 All. Anand Kumar Vs. State of U.P. & Ors.
301

16. Subsequent thereto, the bunch of
special appeals that had been filing
challenging the judgment and order dated
02.02.2018 were decided by the Division
Bench of this Court leading being Special
Appeal No. 96 of 2018 in re: Umesh
Chandra Yadav Vs. State of U.P. &
Others vide judgment and order dated
23.09.2022.

17. Though various directions had
been issued by the Division Bench of this
Court pertaining to the appellants therein
yet a perusal of paragraph 15 of the
judgment would indicate that the Division
Bench of this Court was of the view that for
those persons who were continuing even
after 12.09.2016 i.e. the date of effect of
Rules, 2016, the rights had crystallized in
such
contractual
employees
to
be
considered for regularization of their
services on the basis of the provisions
contained in the Rules, 2016 which could
not be denied to them.

18. Incidentally, the judgment and
order dated 23.09.2022 has been affirmed
with the dismissal of Special Leave
Petition (Civil) Diary No. 18904 of 2023
in re: Nagar Ayukta Lucknow Nagar
Nigam Lucknow U.P. & another Vs.
Umesh Chandra Yadav & others vide the
order dated 05.07.2023, as indicated in the
order annexed with supplementary affidavit
(I.A. No. 5 of 2024).

19.
Subsequent
thereto,
the
respondents, vide impugned order dated
26.08.2021, a copy of which is Annexure
No. 1 to the petition, have cancelled the
regularization order of the petitioner dated
23.06.2021 on the ground that in the special
appeal which has been filed by various
other persons the name of the petitioner
does not find place and the special appeal
filed by the petitioner has been dismissed
as withdrawn on 19.08.2021.

20. Thereafter, the respondents have
also orally terminated the services of the
petitioner with effect from 01.09.2021.

21. However, vide interim order dated
08.10.2021 passed in the instant petition,
this Court has provided that the petitioner's
services in Class - IV in Municipal
Corporation shall not be dispensed with,
which interim order still continues and the
petitioner continues to work on a Class IV
post.

22. Contention of learned counsel for
the petitioner is that when despite the order
of writ Court dated 02.02.2018 vide which
writ petition filed by the petitioner had
been dismissed and the services of the
petitioner have already been regularized on
23.06.2021 consequently there was no
occasion
for
the petitioner
to
have
challenged the judgment and order dated
02.02.2018. However in his wisdom the
petitioner filed the special appeal against
the judgment and order dated 02.02.2018
which
was
dismissed
as
withdrawn
considering the fact that he already stood
regularized and further no cause of action
subsisted thereafter for the petitioner to
have challenged the judgment and order
dated 02.02.2018.

23. Even otherwise, the special appeal
which had been filed by various persons
who were aggrieved by the judgment and
order dated 02.02.2018 has been allowed.
Even though directions had been issued
pertaining to the appellants-petitioners of
the said special appeals yet a general
direction had also been issued and as per
paragraph 15 of the judgment passed in
Umesh Chandra Yadav (Supra) on
302 INDIAN LAW REPORTS ALLAHABAD SERIES
23.09.2022, regularization of the persons
who were continuing in service was
required to be considered in terms of Rules,
2016 and in fact, the same was considered
by the respondents and the services of the
petitioner were regularized vide order dated
23.06.2021 and consequently the ground
which has been prevailed by the respondent
in now cancelling the regularization of the
services of the petitioner vide order dated
28.07.2021 merits to be set aside on these
grounds alone more particularly when the
petitioner has been in service since the year
1998.

24. On the aforesaid grounds, it is
argued
that
the
consequential
order
impugned dated 26.08.2021 also merits to
be set aside.

25. On the other hand, Shri Namit
Sharma along with Shri Shailendra Singh
Chauhan,
learned
counsels
for
the
respondent/Corporation have argued that
the fact of the matter remains that the
petitioner along with others had challenged
the Government Order dated 23.07.2012
which had directed for termination of the
services of the employees engaged in
irregular manner or on contract/temporary
basis which writ petitions were dismissed
on 02.02.2018. The special appeal filed by
the petitioner against the said judgment and
order dated 02.02.2018 was dismissed as
withdrawn on 09.08.2021. Thus, the
validity of the Government Order dated
23.07.2012 was upheld so far as it pertains
to the petitioner and the petitioner stood
dismissed from service considering the
Government Order dated 23.07.2012 which
fact was not noticed by the respondents
while passing the regularization order date
23.06.2021.
As
other
persons
were
aggrieved by the order dated 02.02.2018
they filed the special appeals and the order
of status quo had been granted by the
Division Bench of this Court consequently,
the petitioner was also required to submit
the documents pertaining to the special
appeal that might have been filed by him.
The petitioner had however already filed a
special appeal and the same was dismissed
as withdrawn vide order dated 19.08.2021
meaning thereby the judgment and order
dated 02.02.2018, so far as it pertains to the
petitioner,
had
attained
finality
and
consequently once an error had been
committed
by
the
respondents
by
regularising the services of the petitioner
consequently no error has been committed
by them by passing order dated 26.08.2021
vide which regularisation order of the
services of the petitioner had been
cancelled. Also, there is no error in the
order dated 28.07.2021 whereby the State
Government had directed the regularization
of the petitioner subject to the outcome of
the special appeal and as the special appeal
filed by the petitioner already stands
dismissed, as such there is no question of
regularizing
of
the
services
of
the
petitioner.

26. It is also contended that no post is
now lying vacant on which the petitioner
can continue.

27. Heard learned counsel for the
contesting parties and perused the records.

28. From the arguments as advanced
by the learned counsel for the contesting
parties and perusal of records it emerges
that the petitioner was initially appointed
on contract basis in the Nagar Nigam in the
year 1998. The Government order dated
23.07.2012 was issued for terminating the
services of the employees engaged in an
irregular manner/contract/temporary basis.
The writ petition filed by the petitioner
1 All. Anand Kumar Vs. State of U.P. & Ors.
303
challenging the said Government order was
dismissed along with several other petitions
vide judgment and order dated 02.02.2018.
However, despite issuance of the said
Government order and the writ petition
being dismissed, the petitioner continued to
work. In the meanwhile, the Rules, 2016 had
been issued for regularization and the
petitioner
being
found
eligible
for
regularization, was regularized vide order
dated 23.06.2021. The matter would have
ended at this but for the fact that the petitioner
in his wisdom chose to file a special appeal
challenging the judgment and order dated
02.02.2018. The said special appeal was
thereafter withdrawn by the petitioner in view
of the changed circumstances considering that
he already stood regularized in service despite
the Government order dated 23.07.2012
having been upheld with dismissal of the writ
petition. The respondents vide order dated
21.08.2021 considering an earlier order issued
by the State Government directed the
petitioner to submit papers and documents
pertaining to the special appeal that he might
have filed against the order of the writ Court of
the year 2018.

29.
The
said
order
was
issued
considering the order issued by the State
Government dated 28.07.2021 that had
required the regularization order of the
persons to indicate that the same was subject
to the special appeal. As the special appeal
filed by the petitioner had already been
withdrawn by him on account of his
regularization consequently, the respondents
passed the order impugned dated 26.08.2021
cancelling the regularization order of the
petitioner dated 23.06.2021 on the ground
that in the special appeal which has been filed
by various other persons, the name of the
petitioner does not find placed and the special
appeal filed by the petitioner has been
dismissed as withdrawn on 19.08.2021.

30. The peculiar facts with which the
Court is seized are that the petitioner has been
working right since the year 1998 and despite
dismissal of the writ petition filed by him
challenging the Government order dated
23.07.2012 per which the services were to be
terminated, he stood regularized by the
respondents
themselves
without
any
concealment or misrepresentation on his part.
The special appeal that had been filed by the
other persons challenging the judgment and
order dated 02.02.2018 have all been
disposed of with certain directions vide
judgment and order dated 23.09.2022 passed
in bunch of special appeals, the leading being
Appeal of Umesh Chandra Yadav (supra)
with a spate of directions. But for the fact that
the petitioner withdrew the special appeal on
account of he having been regularized in
service, he would also have been entitled for
the benefit of the order passed in the special
appeal vide judgment and order dated
23.09.2022. However, despite the aforesaid
facts, the services have been dispensed with
on the ground that the special appeal filed by
him has been withdrawn without considering
that the withdrawal of the special appeal was
on account of the petitioner having already
been regularized in service even prior to
filing of the special appeal, the regularization
order being dated 23.06.2021, the special
appeal having been filed on 17.08.2021 and
having been withdrawn on 19.08.2021.

31. The Division Bench of this Court
vide judgment and order dated 23.09.2022
in the case of Umesh Chandra Yadav
(supra)
had
issued
the
following
directions:-

"26. Having regard to the overall
facts and circumstances of the case and
also taking into account the right of the
appellants-petitioners of being considered
for regularization under the Regularization
304 INDIAN LAW REPORTS ALLAHABAD SERIES
Rules, 2016 which admittedly have been
enforced by means of the notification dated
12.09.2016 and have been adopted to be
applicable to the Urban Local Bodies by
means of the Government Order dated
03.01.2017, we dispose of this bunch of
special
appeals
with
the
following
directions;-

(i) Cases of all the appellantspetitioners
shall
be
considered
for
regularization of their services in terms of
the provisions contained in Regularization
Rules, 2016.

(ii) Accordingly, the appointing
authority shall prepare an eligibility list of
the candidates, who may be found eligible
to be considered for regularization of their
services in terms of the Regularization
Rules, 2016 within three months from the
date of production of certified copy of this
order before the authority concerned.

(iii) The appointing authority
shall constitute a Selection Committee as
per the provisions contained in the
Regularization Rules, 2016 and refer the
eligibility list to be prepared in terms of the
Regularization Rules, 2016 to the Selection
Committee
which
shall
adjudge
the
suitability of the eligible candidates and
take
decision
for
regularizing
their
services. This exercise shall be completed,
as observed above in (ii) within three
months from the date this order is
communicated to the authority concerned.

(iv) In case on completion of this
exercise in the respective Unban Local
Bodies where the appellants-petitioners
were engaged/are working, certain eligible
contractual employees still remain to be
considered for regularization for want of
vacant posts, the Local Body concerned
shall
seek
approval
of
the
State
Government for creation of supernumerary
posts in terms of the provisions contained
in the proviso appended to rule 5 of the
Regularization Rules, 2016.

(v) In case of such a need, the
proposal seeking approval of the State
Government for creation of supernumerary
posts shall be made by the Local Body
concerned to the State Government at the
earliest after the exercise of regularizing
the services of contractual employees
against the available vacant posts is
completed.

(vi) Once any such proposal from
the respective Urban Local Bodies is
received by the State Government seeking
approval for creation of supernumerary
posts, the State Government shall take
decision thereon as mandated by the
proviso appended to Rule 5 of the
Regularization Rules, 2016 within eight
weeks from the date of receipt of proposal.

(vii) Once the approval for
creation of supernumerary post is accorded
by the State Government, the process of
regularizing the services of remaining
contractual employees, who could not be
regularized for want of availability of
vacant
post
shall
be
initiated
and
completed
within
next
three
months
thereafter.

(viii) We also direct that cases of
all the appellants-petitioners in this bunch
of special appeals shall be considered
afresh for regularization of their services in
terms of the Regularization Rules, 2016
irrespective of any such exercise having
earlier been done.

(viii) Those appellants-petitioners
who are continuing as on today shall
continue to work till their cases for
regularization under the Regularization
Rules 2016 are considered and decided in
terms of this order. However, once any
contractual employee is not found eligible
and suitable for regularization of his/her
services,
his/her
services
shall
be
1 All. Anand Kumar Vs. State of U.P. & Ors.
305
terminated in terms of the provisions
contained in Regularization Rules, 2016."

32. However, the aforesaid directions
may not have any applicability for the
petitioner inasmuch as he had already been
regularized in service. Consequently, it is
the observations as made in paragraph 15
of the judgment and order dated 23.09.2022
in the aforesaid special appeal which would
be applicable on the petitioner which for
the sake of convenience are reproduced
below:-

"15......... Accordingly, so far as
the applicability of Regularization Rules,
2016 in the case of the appellantspetitioners in this bunch of special appeals
is concerned, in view of what has been
observed by the Division Bench in its
judgment dated 10.04.2017 the rules may
not apply to those contractual employees
whose services were dispensed with prior
to the date of enforcement of the
Regularization Rules, 2016, that is to say,
prior to 12.09.2016, however those who
are continuing even after the said date i.e.
after 12.09.2016 the rights crystallized in
such
contractual
employees
to
be
considered for regularization of their
services on the basis of the provisions
contained in Regularization Rules, 2016, in
our considered opinion, cannot be denied
to them."
(emphasized by the Court)

33. From a perusal of the aforesaid
observations, it is apparent that the
Division Bench was of the view that those
persons who are continuing even after the
date of promulgation of the Rules i.e
12.09.2016, a right stood crystallized in
such
contractual
employees
to
be
considered for regularization of their
service on the basis of the Rules, 2016.
Admittedly, the petitioner was continuing
in service on the date of promulgation of
the Rules i.e 12.09.2016 and thus he was
correctly regularized vide order dated
23.06.2021. Thus, once the petitioner
already stood regularized there was no
occasion for a Government order dated
28.07.2021 to be issued indicating that the
regularization was subject to decision of
the special appeal, so far as it pertains to
the petitioner and for that matter for the
consequential
impugned
order
dated
26.08.2021 to be issued by the Nagar
Nigam cancelling the regularization order
of the petitioner.

34. In this regard, it would be apt to
refer of the judgment of the Apex Court in
the case of Central Council for Research
in Ayurvedic Sciences and Anr Vs.
Bikartan Das and ors- (2023) SCC
OnLine SC 996 wherein the Apex Court
has held as under:-

"51.
The
second
cardinal
principle of exercise of extraordinary
jurisdiction under Article 226 of the
Constitution is that in a given case, even if
some action or order challenged in the writ
petition is found to be illegal and invalid,
the High Court while exercising its
extraordinary jurisdiction thereunder can
refuse to upset it with a view to doing
substantial justice between the parties.
Article 226 of the Constitution grants an
extraordinary remedy, which is essentially
discretionary, although founded on legal
injury. It is perfectly open for the writ
court, exercising this flexible power to
pass such orders as public interest dictates
& equity projects. The legal formulations
cannot be enforced divorced from the
realities of the fact situation of the case.
While administering law, it is to be
tempered
with
equity
and
if
the
306 INDIAN LAW REPORTS ALLAHABAD SERIES
equitable situation demands after setting
right the legal formulations, not to take
it to the logical end, the High Court
would be failing in its duty if it does not
notice
equitable
consideration
and
mould the final order in exercise of its
extraordinary jurisdiction. Any other
approach would render the High Court a
normal court of appeal which it is not."

35. Consequently, considering the
peculiar facts and circumstances of the case
as well as exercising the jurisdiction under
Article 226 of Constitution of India and in
view of the aforesaid discussion, it is thus
apparent that the Government order dated
28.07.2021 merits to be quashed so far as it
pertains to the petitioner along with the
order dated 26.08.2021.

36. So far as the ground taken by the
respondents that the regularization order of
the petitioner was irregular, the same may
not detain the Court keeping in view of the
observations made by the Division Bench
of this Court in the case of Umesh
Chandra Yadav (supra) as reproduced
above per which the petitioner acquired a
right to be regularized in view of the Rules,
2016.

37. So far as the ground that no post is
now lying vacant on which the petitioner can
continue as urged by the respondents, the said
ground is found to be patently misconceived
inasmuch as the regularization order of the
petitioner dated 23.06.2021 itself indicates
that the petitioner has been regularized
against a vacant post of Lighter/Porter in the
pay scale of Rs.5200-20200 and thus if at this
stretch of time, no post is lying vacant, the
same will not effect the case of the petitioner.

38. Consequently, the writ petition is
allowed. The orders impugned dated
26.08.2021, a cop of which is annexure 1 to
the
writ
petition
and
order
dated
28.07.2021, a copy of which is annexure 2
to the writ petition so far as it pertains to
the petitioner, respectively, are quashed.

39. Consequences to follow.

40. At this stage, learned counsel for
the respondents states that there might be
some difficulty in fixing the seniority of the
petitioner viz-a-viz the other persons who
have been regularized in pursuance to the
order of the Division Bench of this Court in
the case of Umesh Chandra Yadav
(supra) subsequent to the petitioner. As
already indicated above, this order has been
passed in peculiar facts and circumstances
of the case and shall not be considered as a
precedent.
----------
(2025) 1 ILRA 306
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.01.2025

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.
THE HON'BLE VIPIN CHANDRA DIXIT, J.

Writ C No. 32144 of 2021

M/S Annapurna Construction Co.
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Girish Chandra

Counsel for the Respondents:
Sri Mukul Tripathi, S.C., Sri Vivek Saran

Civil Law - Constitution of India,1950Article 226-The petitioner, a registered
contractor, sought a writ of mandamus for
the release of payment for the contractual