# Anil Kumar Azad and others v. State of U.P. and others

- **Citation:** (2001) 1 ILRA 340
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-kumar-azad-and-others-v-state-of-u-p-and-others-39726
- **Pages:** 8

## Text

1All] Anil Kumar Azad and others V. State of U.P. and others
340
 authority cannot complain that he has
been deprived of the right of appeal. The
delinquent employee is not prejudiced in
any manner, if the order of suspension is
passed by a higher authority.

18. In the conspectus of above
discussion, I have no hesitation in
recording a firm finding that an order of
suspension
pending
enquiry
or
in
contemplation of such enquiry or, for that
matter, during the investigation, enquiry
and trial on a criminal charge of a
Government servant may be passed by an
authority superior and higher in rank to
the appointing authority. There is no law
to the contrary. Therefore, by virtue of his
placement
higher
in
hierarchy,
the
Superintending Engineer could pass an
order of suspension of the petitioner in
contemplation of the enquiry.

19.

Learned counsel for the
petitioner wanted me to go into the merits
or demerits of the allegations on the
strength of which the petitioner has been
suspended. The truthfulness, correctness
and the genuineness or otherwise of the
allegations charges against the petitioner
have to be determined by the enquiry
officer after evidence. The apex court has
repeatedly pointed out that even when the
matter comes to the High Court or
Tribunal
after
the
imposition
of
punishment, it has no jurisdiction to go
into truth of the allegations/charges
except in a case where they are based on
no evidence, i.e. where they are perverse.
The jurisdiction of this court, i.e. the
power of judicial review, is limited to the
examination of the procedural correctness
of the decision making process. This writ
court cannot sift the merits of the
allegations against the petitioner.

20. For the reasons stated above, the
order of suspension passed by the
Superintending
Engineer
cannot
be
legally faulted or assailed. The writ
petition, therefore, turns out to be devoid
of any merits and substance and it is
accordingly dismissed without any order
as to costs.

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2000 All LJ 1268
AIR 1997 SC 3657
By the Court

1. The petitioners, who are three in
number,
were
appointed
in
Krishi
Utpadan Mandi Samiti Chhibramau in
district Kannauj. Petitioner No. 1- Anil
Kumar Azad who happens to be a
Scheduled Caste was appointed as Mandi
Assistant on 14.06.1996 and he joined on
the said post on 17.06.1996. Ram
Kishore, petitioner No. 2 belonging to the
Backward Class was appointed as Mandi
Sahayak by order dated 14.05.1997. He
joined on the same date. Ashan Ali,
petitioner no. 3 was appointed as Mandi
Abhirakshak on 08.09.1997. Pursuant to
the
decision
taken
by
the
State
Government on 12.02.1999 and the
resolution adopted by the Mandi Parishad
on 09.03.1999, the services of all the three
petitioners were terminated by separate
orders dated 15.03.1999, copies whereof
are Annexures 6-A, 6-B, 7-A and 7-B.
They were paid on month's salary in lieu
of notice besides the requisite amount of
compensation.

2. The petitioners have alleged that
their past antecedents have been neat and
their work and conduct have been quite
satisfactory. Therefore, there was hardly
any occasion to terminate their services as
their appointments were made till the
regularly
selected
candidates
were
available to replace them. The validity of
the Government order dated 12.02.1999
on the basis of which the resolution was
adopted by the Mandi Parishad and the
termination orders were passed by the
Mandi Samiti has been challenged on a
variety of grounds.

3. The stand taken in the counter
affidavit
filed
on
behalf
of
the
respondents is that the petitioners were
appointed in temporary capacity and on a
fixed
remuneration
as
a
stop
gap
arrangement on a clear understanding that
their services were liable to be terminated
1All] Anil Kumar Azad and others V. State of U.P. and others
342
at any time without notice and since the
petitioners had no right to the posts on
which they were appointed, they cannot
complain against the orders by which
their ad-hoc appointment have been
brought to an end.

Counter and rejoinder affidavits have
been exchanged. Heard Sri Ash Khare,
Senior Advocate, assisted by Sri V.D.
Chauhan for the petitioners and Sri B.D.
Madhyan, appearing on behalf of the
respondent nos. 2 to 4 as well as learned
Standing counsel for respondent no. 1-
State of U.P.

4. At the outset it may be mentioned
that hundreds of persons were appointed
in the various Mandi Samitis all over the
State of U.P. during the relevant period on
ad-hoc basis in temporary capacity and
for fixed period liable to be extended
from time to time. In some cases, the
salary was to be paid in the regular pay
scales whiles in others, consolidated
amount
of
remuneration
was
made
payable. One thing common in all the
appointments, however, was that the
services of the persons so appointed were
terminable at any time without notice.
The appointees, therefore, had no right on
any particulars post.

5. It appears that there arose a
difficulty in absorbing the employees so
appointed and in spite of the fact that the
departmental authorities were chalking
out a scheme for absorbing them on
different posts or to confer regular
appointment in a phased manner, the State
Government, on the reference made by
the Director, Rajya Krishi Mandi Utpadan
Parishad, passed an order on 12.02.1999
taking the policy decision that the services
of all such employees be terminated.
Pursuant to the orders passed by the State
government, the Mandi Parishad adopted
a resolution on 09.09.1999, which was
circulated to the Mandi Samitis for
compliance.
The
services
of
the
employees who were appointed during the
relevant
period
were
terminated
on
different dates. The orders passed by the
State Government, the resolution adopted
by
the
Mandi
Parsishad
and
the
termination orders passed by the Mandi
Samitis concerned gave rise to a spate a
petitions before this court as well as its
Lucknow bench. One such petition no.
40563 of 1999 was filed by Mukesh
Chandra, which was decided by this
court (Hon'ble Mr. V.M. Sahai, J.) on
27.10.1999 reported in 2000 (1) E.S.C.-
558 (Allahabad). In paragraph 36 of that
decision, the following directions were
issued:-

"For the reasons stated above, this
petition succeeds and is allowed. The
order
dated
11.06.1999
passed
by
respondent no. 3, Annexure 4 to the writ
petition
is
quashed
with
following
directions:-

(1) The petitioners shall be reinstated
and shall be permitted to continue as clerk
till regular selections are held;

(2) The respondents shall hold regular
selection for the vacancies within six
months from today. The petitioner shall
be permitted to participate in it. If he has
become over age he shall be granted age
relaxation.

(3) The petitioner was appointed by the
Additional
Director
on
the
recommendation of the Deputy Director.
He worked as a clerk from the date of his
appointment
till
the
date
of
his
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
343
termination. He was paid Rs.1,400 per
month only. He shall be paid the
difference in the emoluments paid and the
salary payable to a clerk within three
month from today;

(4) The appropriate authority under the
Uttar Pradesh Krishi Utpadan Mandi
Adhiniyam,
1964,
U.P.
Agriculture
Produce markets Board (Officers and
Staff Punishment) Regulations, 1984 and
the U.P. Agriculture Produce Market
Committees
(Centralised)
Services
Regulations,
1984
or
the
State
Government as the case may be shall
initiate
action
against
both
the
recommending and appointing authority
departmentally and by initiating criminal
proceedings;

(5) It would be open to the respondents
to recover the amount spent on salary in
excess of 10% from the appointing
authorities
and
if
recommending
authorities
are
involved
then
proportionately from both;

(6) A copy of this judgement shall be
sent by the office within a week to the
Chief Secretary, State of Uttar Pradesh to
ensure that the directions are complied.

Another Writ petition no. 955 of 2000
files by Vinai Kumar Shukla came to be
decided by this court (Hon'ble Mr. S.R.
Singh, J.) on 24.02.2000. it was allowed
in terms of the directions (aforesaid)
issued in Mukesh Chandr's case (supra).
As many as 102 writ petitions (leading of
which was Writ No. 1346 of 1999 -
Mukesh Kumar Vs. U.P. Rajya Krishi
Utpadan Mandi Parishad and others)
were decided by a common judgement
dated 11.08.2000 by the Lucknow Bench
of this court (Hon'ble Mr. Bhanwar
Singh, J.) in which the following direction
was issued:-

"......Having regard to the discussions
made above, I am inclined to hold that
written and verbal termination orders of
the petitioners issued by the authorities at
the dictation of Government as contained
in letter dated 12.02.1999 are arbitrary,
unreasonable and discriminatory and,
therefore, all such termination orders
along with the irrational impugned letter
of source dated 12.02.1999 are hereby
quashed. A writ of certiorari is issued
accordingly. Further, a writ of mandamus
is also issued commanding the opposite
parties to allow the petitioners to resume
their duty with immediate effect. They
shall be deemed to have continued in
services and as such they shall be
relegated
to
their
original
position.
However, they will not get their back
wages. The U.P. Agricultural Produce
Market Board shall within six months
resolve and formulate a policy to deal
with the terms of their services by giving
due consideration to its earlier resolution
regarding regularisation of their services.
The Board will also take stern step to
ensure that such an odd situation to the
embarrassment
of
the
competent
authorities does not arise in future."

Another case - Rajneesh Varshney
and others Vs. State of U.P. and others
(writ petition no. 537 of 1999 (S.B.) filed
before Lucknow Bench) was decided by a
Division bench (Hon'ble Mr. Ashish
Kumar Trivedi, J. and Hon'ble Mr. R.D.
Mathur, J.) on 05.09.2000. The decision
dated 11.08.2000 of the learned Single
Judge in Mukesh Kumar's case (supra)
was approved. Fifty six more writ
petitions (of which leading case was writ
no. 2537 of 1999- Manoj Kumar and
1All] Anil Kumar Azad and others V. State of U.P. and others
344
others Vs. U.P. Rajya Krishi Utpadan
Mandi Parishad and others) were
decided by this court (Hon'ble Yatinder
Singh, J.) on 10.10.2000 in terms of
Mukesh Kumar's case (supra)

6. In the conspectus of series of
aforesaid decisions, Sri Ash Khare,
learned Senior Advocate urged that the
case of the present petitioners is squarely
covered and the benefit extended to the
petitioners in the writ petitions, aforesaid,
has, of necessity, to be made available to
the present petitioners also.

7. This submission has been repelled
by Sri B.D. Madhyan who argued that the
decision, aforesaid are clearly against law
laid
down
in
Arvind Kumar Vs.
Director Rajya Krishi Utpadan Mandi
Parishad, Lucknow and others - 1999
(2) A.W.C.-1638; Qmar Vishal Siddiqui
Vs. Director Krishi Utpadan Mandi
Parishad U.P. Lucknow and others -
(1999) 2 U.P.L.B.E.C - 998; Employees
Union of Mandi Assistants through its
Secretary Ravindra Kumar and others
Vs. Director U.P. Krishi Utpadan
Mandi Parishad and others decided on
20.11.1997; Special arising out of the
aforesaid writ petition (Special Appeal
No. 8 of 1998 decided on 12.01.1998);
and Mohan Pandey Vs. The Director
Addl.
Director
of
Rajya
Krishi
Utpadan Mandi Parishad U.P. and
others in Civil Misc. Writ no. 26272 of
1998 decided on 06.08.1998 as well as in
the decision of the Division Benches of
this court in the case of Raja Ram
Maurya Vs. U.P. Rajya Krishi Utpadan
Mandi Samiti and others - 1998 (1)
U.P.L.B.E.C.-690 and another Division
bench decision dated 13.11.2000 in writ
petition no. 1093 of 1999. Anshuman
Mishra Vs. State of U.P. and others.
8. So far as the cases of Arvind
Kumar (supra); Qmar Vishal Siddiqui
(supra); Employees Union of Mandi
Assistant
through
its
Secretary
Ravindra Kumar and others (supra) and
Mohan Pandey (supra) are concerned,
they are the decision of the Hon'ble
Single Judges and were rendered prior to
the decision in the case of Mukesh
Kumar (supra) since Mukesh Kumar
(supra) has been approved by subsequent
Division Bench in the case of Rajneesh
Varshney (supra) all the above decision
rendered by Hon'ble Single Judges are of
no assistance and the reliance on them is
misplaced. The decision dated 12.01.1998
in Special Appeal no. 8 of 1998
Employees Union of Mandi Assistants
(supra) though has not disturbed the
decision of the learned Single Judge, a
direction was issued that the affected
employees shall make a representation to
the authorities concerned. This decision
also does not appear to be of much help in
view of the discussion which is now to
follow.

9. A short and swift reference may
also be made to the decision in the cases
of Mithlesh Kumar Pandey Vs. Sate of
U.P. and others in Civil Misc. Writi no.
41671 of 1996 decided on 05.03.1997;
Arvind Kumar Agarwal Vs. State of
U.P. and others in Civil Misc. Writ no.
17521 of 1990 decided on 28.10.1997;
Girish Kumar Mishra Vs. District
Inspector of Schools Shahjahanpur and
others - 1999 (1) E.S.C.-47 (Alld).
Ashwani Kumar and others Vs. State of
Bihar and others - A.I.R. 1997 S.C. -
1928;
Dr.
Sharan
Kumar
Singh
Chauhan Vs. State of U.P. and others -
2000 All. L.J.-1268 and Himanshu
Kumar Vidyarthi and others Vs. State
of Bihar and others A.I.R. 1997 S.C.-
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
345
3657. All these decisions are not directly
on the point. Mithlesh Kumar Pandey
(supra) deals with the matter of transfer.
Other
decisions
laid
down
certain
principles of law in an entirely different
set of facts. There can be no quarrel about
the principles of law laid down in the said
cases, but certainly they are not res
integra.

10. The two crucial case of the
Division Benches are those of Anshuman
Misra (supra) and Raja Ram Maurya
(supra) rendered by Presiding Judge
Hon'ble S.H.A. Raja, J. in which a view
contrary to the view taken in the decision
relied upon by Sri Ash Khare has been
taken on the ground that the appointment
de hors the regulation were had in law.
Anshuman Misra (supra) was decided by
placing
emphatic
reliance
on
the
observations made in paragraphs 30 and
31 of Raja Ram Maurya (supra), which
are quoted below:-

"30. In the present cases before us; the
petitioners have no lien on the posts of
Assistant Engineer. They were asked to
work as Assistant engineers as a stop gap
arrangement which do hors the Rules. The
return from the back door from which
they entered, cannot be subjected to
judicial serutiny. Since the order of their
promotion as stop gap arrangement to the
posts of Assistant Engineer was made in
violation of the Service Regulations, the
illegality committed in passing the order
of promotion has only been corrected by
means of impugned orders. In such a
situation the petitioners were not required
to be given an opportunity of being heard
for correcting such a mistake or illegality.

31. The action of the Director of Mandi
Parishad who has passed the impugned
orders cannot be faulted because he was
bound to follow the direction of the State
Government as contained in Section 26-M
of the Act. The State Government has the
power to issue such directions under the
Uttar Prade3sh State Control over Public
Corruption Act, 1975 also."

11. In Anshuman Mishra's case
(supra) it was further observed that the
Division Bench decision in Rajneesh
Varshney case (supra) was per incurium,
as it did not take notice of the earlier
decision in Raja Ram Maurya's case
(supra).
I
have
given
thoughtful
consideration to the matter and find it
difficult to pursued myself to agree with
Sri Madhya. Ansuhman Mishra's case
(supra)
is
primarily
based
on
the
observations made in paragraphs 30 and
31
(above
quoted)
in
Raja
Ram
Maurya's case (supra). The facts in Raja
Ram
Maurya's
case
(supra)
are
altogether different and the observations
made in that case do not squarely apply to
the facts of the present case as well as the
cases which have been decided in favour
of the employees whose services were
terminated. In Raja Ram Maury's case
(supra) the Mandi Parishad had taken a
decision to promote the Junior Engineers
as Assistant Engineer without obtaining
previous approval regarding sanction of
posts.
Since
the
Junior
Engineers
themselves were working and ad-hoc
basis, their appointment as Assistant
Engineers on promotion would have
certainly been against the public policy
because their appointment on promotional
post would have been substantive and
such a backdoor entry would have been
injurious to the cause of public and
against the Regulations, 1965 as well as
1984. The contention of Sri Madhya,
learned counsel for the Mandi Parishad is
1All] Anil Kumar Azad and others V. State of U.P. and others
346
correct that the appointment on the
substantive post without taking recourse
to the prescribed procedure as laid in the
two Regulations, referred to above, is
illegal and it was on the basis of the same
rationale that the Court upheld in the case
of Raja Ram Maurya (supra) that the
government could lay down a policy and
issue directions to the Board if illegal
appointment are proposed to be made by
the Mandi Parishad or Mandi Samitees. In
the instant case, as well as decision,
which have been made in favour of the
employees of the Mandi Samiti, neither
the Mandi Parishad nor the Mandi
Samitees
has
made
any
regular
appointment. Raja Ram Maurya's case
was considered and distinguished in
Mukesh Kumar's case (supra), decided on
11.08.2000 in the following terms:-

"....... Hence, in these cases, neither
the Mandi Parishad nor the Mandi
Samitees
ahs
made
nay
regular
appointment and as conceded on behalf of
Mandi Parishad and also mentioned
above, never before or after the cut off
period, regular appointment have been
made.
The
government
could
have
certainly
issued
some
directions
by
evolving a policy and suggested ways and
means to deal with the appointment of adhoc employees. Section 26-F clearly
postulates that the Board will make all
appointments of officers and servants in
accordance with the terms and conditions
as may be provided for in regulations
made by the Board."

I am in full agreement with the
observations made above and find that the
various observations made in Raja Ram
Maurya's case (supra) are to be confined
to the facts of that case only and whatever
has
been
averred,
canvassed
and
determined in that case is not applicable
on all fours to the facts of the present
case. Mukesh Kumar's case has been
specifically approved by a Division
Bench in Rajneesh Varshney's case
(supra) which was decided on 05.09.200.
Sri B.D. Madhyan appearing on behalf of
the Mandi Parishad and other frankly
conceded that the State Government had
taken a decision on 22.09.2000 not to file
a Special Appeal against the Decision in
Mukesh Kumar's case (supra). Similar
Decision was taken by Mandi Parishad on
09.10.2000. the petitioners covered by
Mukesh Kumar's case (supra) have been
permitted to join on their respective posts.
It is, thus, clear that the State Government
as well as the Mandi Parishad have
treated the decision in Mukesh Kumar
(supra) as final and have implemented the
same. Therefore, there does not appear to
be any occasion for this court to take a
view different from that, which has been
taken in the case of Mukesh Kumar
(supra). The petitioners are obviously
entitled to the benefit of the decision in
the said case.

12. The writ petition is allowed and
the impugned orders dated 15.03.1999
terminating the services of the petitioners
are hereby quashed on the basis of the
reasoning adopted in Mukesh Kumar's
case (supra), which squarely applies to the
case of the case of the present petitioners.
The petitioners shall be deemed to have
continued in service and as such they
shall be relegated to their original
position. The petitioners, however, shall
not be entitled to back wages. There shall
be no order as to costs.
Petition Allowed.
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
347
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By the Court

1. Heard Sri Mahesh Gautam, the
learned
counsel
appearing
for
the
petitioner, and Sri V.N. Agarwal, the
learned Standing Counsel of the State of
U.P., representing the respondent.

2. Dhirendra Kumar Gautam, an
erstwhile
Jail
Warden,
invokes
the
jurisdiction of this Court under Article
226 of the Constitution of India for
impugning the two orders and judgement
date 15th July, 1998 and 23rd July, 1998
passed by the U.P. Public Services
Tribunal, Lucknow, copies where of are
Annexures '6' and '8' to the petition.

3. By the order and judgement dated
15th July, 1988, the Tribunal has rejected
the claim petition of the petitioner and the
order and judgement dated 23rd July, 1998
purports to reject the petition of the
petitioner seeking review of the order and
judgement dated 15th July, 1998. The
prayer for quashing the order dated 20th
February, 1987 and 1st July, 1991, giving
rise to the claim petition, has also been
made. The order dated 20th February,
1987, a copy whereof is Annexure '1' to
the petition, is the offer terminating the
services of the petitioner and the order
dated 1st July, 1991 is the order passed by
the appellate authority rejecting appeal of
the petitioner.