# Annu v. State of U.P. & Ors

- **Citation:** Writ-A No. 46483 of 2016
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-31
- **Case number:** Writ-A No. 46483 of 2016
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/annu-v-state-of-u-p-ors-46288
- **Pages:** 5

## Headnote

C.S.C.

(A) Appointment - denial of appointment
of petitioner on the post of daily wager
sweeper
as
per
the
Circular
dated
01.11.1999 is against the principles of
natural justice and is violation of Article
14, 16 and 21 of the Indian Constitution -
reasonable opportunity of hearing must be
given

Writ Petition disposed of. (E-10)

## Text

1012 INDIAN LAW REPORTS ALLAHABAD SERIES
weaving teacher, (38) wood craft teacher,
(39) Book Craft teacher and (41) Metal
Craft teacher, the word "OR" has been used
between the qualification provided in Clauses
(a) and (b). As discussed in para 10 above, a
candidate to be eligible for the post of Trained
Graduate Teacher (Silai) must posses the
minimum qualification as provided in Clause
(a) or Clause (b) of item No.44. If the word
"and" is read between these two Clauses, then
the qualifications mentioned in these two
Clauses would not only lead to irreconcilable
conflict but would also result in absurdity and
manifest contradiction and shall defeat the
apparent purpose of the enactment for
recruitment on the post of teacher. Since
between Clauses (a) and (b) of item No.44, the
word "OR" does not exist, therefore, there is
clear necessity to supply casus omissus to iron
out creases so as to give force and life to the
intention of the legislature to entries (a) and (b)
of item No.44.

18. Thus, the question framed above is
answered that a candidate who posses either
the qualification provided in Clause (a) or
the qualification provided in Clause (b) of
item No.44 in Appendix "A" under Chapter
II of the U.P. Intermediate Education Act,
1921 shall be eligible for the post of Trained
Graduate Teacher in Silai subject for High
School (Class 9 -10).

19. For all the reasons aforestated, the
impugned orders passed by the Secretary U.P.
Secondary
Education
Selection
Board,
Allahabad, dated 31.10.2018 are hereby
quashed. The aforesaid selection board is
directed to declare the results within a month
and proceed further in accordance with law.

20. All the Writ Petitions are allowed to
the extent indicated above.

21. It is made clear that if any of the
petitioners do not possess requisite qualification
as provided either in Clause (a) or in Clause (b)
of item No. 44, Appendix 'A' under Chapter II
of the U.P. Intermediate Education Act, 1921,
then they shall not be considered for
appointment.
----------

(2020)03-05ILR A1012
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.01.2020

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Writ-A No. 46483 of 2016

Annu ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Jyotir Bhushan Singh

Counsel for the Respondents:
C.S.C.

(A) Appointment - denial of appointment
of petitioner on the post of daily wager
sweeper
as
per
the
Circular
dated
01.11.1999 is against the principles of
natural justice and is violation of Article
14, 16 and 21 of the Indian Constitution -
reasonable opportunity of hearing must be
given

Writ Petition disposed of. (E-10)

(Delivered by Hon'ble Shamim Ahmad, J.)

1. This writ petition under Article 226
of the Constitution of India has been filed
by the petitioner with the following
prayer:-
3-5 All. Annu Vs. State of U.P. & Ors.
1013

(i) Issue a writ, order or direction
in the nature of certiorari quashing the
impugned order dated 16.07.2016 and
order dated 20.11.2015 passed by the
respondent no.3 in rejecting the claim of
the daily wager sweeper of the petitioner.

(ii) Issue a writ order or direction
in the nature of mandamus directing the
respondent
authorities
to
treat
the
petitioner as daily wager sweeper from
part time sweeper in pursuance of the
circular dated 01.11.1999 made by the
Chief Engineer, U.P. P.W.D., Lucknow in
the department and to give all the benefits
to the petitioner since the date on which
Junior
has
been
benefited
in
the
department.

(iii) Issue any other suitable writ,
order or direction as this Hon'ble Court
may deem fit and proper under the facts
and circumstances existing in the present
case.

(iv) Award the cost of this writ
petition
in
favour
of
the
petitioner
throughout.

2. Learned counsel for the petitioner
argued that the petitioner was appointed
and performing his duties as part-time
sweeper in the department since 10.07.1998
and has been allowed to work time to time
in Government residential colony of the
department, in this regard experience
certificate dated 30.08.2007 was issued by
the Assistant Engineer, Nirman Khand-1,
P.W.D., Banda.

3. Learned counsel for the petitioner
further argued that the Engineer-in-Chief
U.P. Lok Nirman Vibhag, Lucknow issued
a circular on 01.11.1999 to ensure for
making appointment of part-time sweeper
and other Class-IV employees on the post
of Daily Wager Employee for the purpose
of regularization in the Public Works
Department, copy of the circular dated
01.11.1999 is annexed as Annexure No.1 to
the writ petition. After the above circular,
the petitioner moved an application on
04.01.2002 before the respondent no.3Executive Engineer, Nirman Khand-1,
P.W.D. Banda for getting appointment on
the post of Daily Wager Employee in the
department and on the application of the
petitioner the Superintending Engineer,
Banda Circle, P.W.D. Banda wrote a letter
dated 06.05.2002 to the Engineer-in-Chief,
Viyav "ga" Verg, P.W.D., Lucknow with
the request grant of permission to appoint
the petitioner on daily wager in the
department but no action was taken by the
respondents for appointing the petitioner on
daily wager basis.

4. Learned counsel for the petitioner
further argued that the junior part-time
sweeper to the petitioner namely Suresh
Kumar working in the Public Works
Department, Banda filed a Writ Petition
No.47604 of 2012 before this Court to treat
him as daily wager in spite of part-time
sweeper as per Circular dated 01.11.1999
and this Hon'ble Court vide judgment and
order dated 27.11.2012 disposed of the writ
petition with the direction to decide the
case of the petitioner-Suresh Kumar and in
pursuance of the order dated 27.11.2012
the respondent no.3 by an order dated
12.03.2013 appointed the Suresh Kumar as
daily wager employee and was being paid
the benefit of payment of daily wager
employee in the department.

5. Learned counsel for the petitioner
further argued that since the petitioner has
been working on the post of sweeper since
long time as part-time and several post of
sweeper were falling lying vacant. The
petitioner was also entitled for regular post
in the department and since the petitioner
1014 INDIAN LAW REPORTS ALLAHABAD SERIES
has been engaged as part-time sweeper and
is entitled to be treated as daily wager
employee in the department as per Circular
dated 01.11.1999 but he was deprived of
his rights and whereas juniors have been
given the benefit. Respondent did not
consider the claim of the petitioner for
treating him as daily wager sweeper,
therefore, the petitioner approached this
Hon'ble Court and filed Writ Petition
No.41417 of 2015 with the request that he
may be treated as daily wager sweeper in
spite of part-time sweeper as per Circular
dated 01.11.1999 and this Hon'ble Court
vide
order
dated
24.09.2015
finally
disposed of the writ petition. Relevant
portion of the judgment and order dated
24.09.2015 is reproduced hereinbelow:-

"Learned
Counsel
for
the
petitioner has drawn the attention of the
Court to a communication which has been
issued by the Chief Engineer, Public Works
Department, U.P., Lucknow dated 1st
November, 1999 wherein it is mentioned
that the practice of engaging part-time
sweeper is highly objectionable as these
employees are denied the benefit of
regularization on the ground that they are
working as part-time. The direction has
been issued to discontinue such practice.

It is contended by the learned Counsel
for the petitioner that in spite of the said clear
direction of the Chief Engineer, the petitioner is
being engaged as a part-time sweeper.

From the record it appears that the
petitioner, for redressal of his grievance, has made a
representation dated 6th July 2015 which is on the
record as annexure-12 to the writ petition.

Having regard to the facts and
circumstances of the case, I am of the view that the
ends of justice would be subserved by issuing a
direction upon the third respondent to consider the
cause of the petitioner and pass appropriate order in
accordance with law expeditiously, preferably within
three months from the date of communication of this
order.

The writ petition is, accordingly,
disposed of. There shall be no order as to costs."

6. Learned counsel for the petitioner further
submits that the copy of the order dated 24.09.2015
was served by the petitioner before the respondent
no.3 with a representation dated 05.10.2015 but the
respondent no.3 was not passing any order in
compliance of the direction issued by this Court,
therefore, the petitioner filed a Contempt Petition
No.1342 of 2016 before this Hon'ble Court, in which
notices were issued against the respondent no.3 with
a direction to comply with the order of writ court.

7. Learned counsel for the petitioner
further submits that after getting the contempt
notice issued by this Hon'ble Court, the
respondent no.3 passed the order dated
16.07.2016 which is impugned in the present
writ petition and the claim of the petitioner was
rejected on irreverent ground.

8. Learned Standing Counsel oppose
the argument raised by the learned counsel
for the petitioner and submitted that the
impugned order dated 16.07.2016 is rightly
passed and no interference is required by
this Hon'ble Court and the petitioner is not
entitled for any relief.

9. In the rejoinder affidavit learned
counsel for the petitioner denied the
averments made in the counter affidavit.

10. Heard learned counsel for the
petitioner, learned Standing Counsel for the
respondents and perused the record.

11. From the perusal of the impugned
order dated 16.07.2016, which is filed as
Annexure No.19 to the writ petition, the
ground taken by the respondents while
rejecting the claim of the petitioner is that
3-5 All. Annu Vs. State of U.P. & Ors.
1015
the petitioner was not employed as parttime sweeper in the department but he has
been performed the work of sweeper as per
requirement from time to time by the Junior
Engineer and he was paid cash payment by
the department. It was further mentioned in
the impugned order that there is a ban on
01.07.1992
by
the
Engineer-in-Chief
against the appointment of the muster role
employee in the department and it is further
stated
that
Government
Order
dated
29.06.1991, 17.07.1991 and 02.09.1992
imposes ban for the appointment of daily
wager employee in the department and it
was further stated that the full time sweeper
is not required in the department, as such,
the petitioner is not entitled for being
appointed on the post of daily wager
sweeper.

12. From the perusal of the impugned
order dated 16.07.2016 it is crystal clear
that the respondent no.3 did not consider
the direction of Circular dated 01.11.1999
issued by the Chief Engineer, Public Works
Department U.P. Lucknow, wherein a clear
cut direction was issued that the practice of
engaging part-time sweeper is highly
objectionable as these employees are
denied the benefit of regularization on the
ground that they are working as part-time.
The
direction
has
been
issued
to
discontinue such practice. The respondent
no.3 without considering the pith and
substance of the Circular dated 01.11.1999
passed the impugned order and reliance has
been placed in the Government Order dated
01.07.1992 mentioning therein that there is
a ban for engaging a muster role employees
whereas the case of the petitioner is not for
engaging him as muster role employee. The
respondent no.3 further referred the G.O.
dated
29.06.1991,
17.07.1991
and
02.09.1992 by which he has mentioned that
as per above G.O. there is a ban for the
appointment of daily wager employee in
the department, whereas these G.O. have
no relevance regarding the appointment of
the petitioner and petitioner is claiming on
the basis of Circular dated 01.11.2019 for
being considered as daily wager employee
in the department, the respondent cannot
apply these G.O., retrospectively, in the
case of the petitioner.

13. It appears that the respondent no.
3 without application of mind and without
considering the direction issued in the
Circular dated 01.11.1999 of the Chief
Engineer, P.W.D. U.P. Lucknow passed the
impugned order dated 16.07.2016. While
passing the impugned order, the respondent
no.3 has not considered this fact that the
petitioner
was
engaged
as
part-time
sweeper since long and the Assistant
Engineer has already issued an experience
certificate which means that the petitioner
was engaged on regular basis and not on
the basis of cash payment as per the
requirement of the department and he
rendered his services in the department
since 10.07.1998 and the authorities have
recommended the case of the petitioner for
considering his case for regularization on
daily wager sweeper. This aspect was at all
not
considered
and
dealt
with
the
respondent
no.3
while
passing
the
impugned order.

14. It is also not out of place to
mention that the respondent no. 3 while
passing the impugned order had at all not
considered this aspect that the juniors to the
petitioner were appointed as daily wager
sweeper in the light of the Circular dated
01.11.1999.

15. It is also relevant to mention here
that while passing the impugned order the
respondent no.3 has not given any
1016 INDIAN LAW REPORTS ALLAHABAD SERIES
opportunity of hearing to the petitioner and
the order was passed on surmises and
conjectures and no valid reason was given
in the impugned order for not considered
the petitioner for daily wager sweeper in
the light of the Circular dated 01.11.1999.

16. The denial of appointing the petitioner
on the post of daily wager sweeper is against
the principles of natural justice and also in
violation of Article 14, 16 and 21 of the
Constitution of India.

17. In view of the above discussion and
argument advanced by learned counsel for the
parties, the impugned order dated 16.07.2016
passed by respondent no.3 is quashed and the
matter is remanded back to the respondent no.3
to consider the claim of the petitioner afresh in
the light of the Circular dated 01.11.1999 issued
by Chief Engineer, P.W.D. U.P. Lucknow and
pass a reasoned and speaking order in
accordance with law within a period of two
months from the date of production of the
certified copy of this order, thereafter , the
respondent no.3 shall communicate the order
passsed by him to the petitioner forthwith.

18. With the aforesaid observations, the
writ petition is finally disposed of.

19. No order as to costs.
----------
(2020)03-05ILR A1016
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.02.2020

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Contempt Appeal No. 2067 of 2016

Mewalal & Ors. ...Applicants
Versus
Sri
Rajeev
Kumar-II
Prin.
Secy.(Appointments) Admin. & Ors.
 ...Opposite Parties

Counsel for the Applicants:
Ram Kumar Verma

Counsel for the Opposite Parties:
Puneet Chandra, Pankaj Khare

Petitioners-retrenched employees-claimed
absorption
by
filing
Writ-District
Magistrate-no compliance-contempt filedState Government passed an order-fresh
cause of action-no wilful disobedience-no
fresh direction can be passed in Contempt
afresh.

Held, In the case in hand, since no direction
was issued vide judgment and order dated
2.5.2016 passed in Special Appeal No.522 of
2012 nor any direction was issued in special
Appeal No.110 of 2013, therefore, in view of the
law laid down by Hon'ble Supreme Court in
Sudhir Vasudeva's case (supra), this court being
the Court of contempt cannot travel beyond
what has been ordered by the writ Court/special
appellate court and therefore, I am not inclined
to proceed against the contemners for alleged
non-compliance of
order dated
30.8.2019
passed by the contempt court. (para 13) (E-9)

Cases Cited:

1. V. Kanakrajan Vs. General Manager South
Eastern Railway & ors. (1996) 10 SCC 102

2. J.S. Parihar Vs. Ganpat Duggar & ors. (1996)
6 SCC 291

3. Sudhir Vasudeva Chairman and Managing
Director, Oil and Natural Gas Corporation
Limited & ors. Vs M. George Ravishekaran &
ors., (2014)3 SCC 373

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. Heard learned counsel for the
petitioners and Shri Ramesh Kumar Singh,