# Anwar Ahmad Siddiqui v. State of U.P. & Ors

- **Citation:** (2024) 7 ILRA 142
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-05
- **Case number:** Writ A No. 50923 of 2008
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anwar-ahmad-siddiqui-v-state-of-u-p-ors-54525
- **Pages:** 4

## Headnote

Law
- Retrospective
regularization - A retrospective regularization
if restores seniority, then fixation of salary/ pay
scale of an employee cannot be lower than that
of other employee/ employees who is/ are
junior to him. (Para 7)

B. By the impugned order, the pay fixation and
promotional pay scale awarded to the petitioner,
taking him to have been regularized with effect
from 27.09.1991, was cancelled. Held - In the
resolution
adopted
by
the
development
authority conferring retrospective regularization
clearly stated that no pecuniary benefits were to
be given to the petitioner however, the
resolution does not specify that the period for
which the petitioner was given regularization
(i.e., between 27.09.1991 and 29.01.2001)
would not be counted for future benefits, such
as time scale, selection pay, ACP benefits, etc.
The phrase salary benefits, etc. would not be
admissible should be understood to mean that
no arrears of salary would be given to the
petitioner.
While
the
resolution
grants
retrospective regularization and preserves the
petitioner's seniority, it implies that this period
can be accounted for future pay scale and other
service benefits, such as ACP benefits, time
scale benefits, and selection grade benefits.
Impugned order quashed (Para 6)

## Text

142 INDIAN LAW REPORTS ALLAHABAD SERIES
consideration is whether the said Rules
require continuous service throughout, i.e.,
from the date of initial engagement till the
commencement of the Rules. In my view,
there is no such requirement under the
Rules as is apparent from perusal thereof.
Rule 4(1) of Rules 2001 is reproduced as
under:

 "4. Regularisation of daily wages
appointments on Group ''D' posts.- (1) Any
person who-

 (a)was directly appointed on daily
wage basis on a Group ''D' post in the
Government service before June 29, 1991
and is continuing in service as such on the
date of commencement of these rules; and

 (b)possessed requisite qualification
prescribed for regular appointment for that
post at the time of such appointment on daily
wage basis under the relevant service rules,
shall be considered for regular appointment
in permanent or temporary vacancy, as may
be available in Group ''D' post, on the date of
commencement of these rules on the basis of
his record and suitability before any regular
appointment is made in such vacancy in
accordance with the relevant service rules or
orders."

9. Same is the legal view taken by a
coordinate bench in the case of Arjun
Kumar Singh (supra). The coordinate bench
has found regularization rules 2001 and 2016
to be providing regularization on some
parameters and I do not find these judgments
to be in any manner helpful to the petitioner.
The judgment in the case of Ram Nath
Verma (supra) by another coordinate bench
also holds that a person must be in service on
the date of enforcement of rules. Vide
paragraph nos. 16 and 17 the Court has
observed thus:
 "16. The Court found that only
requirement under Rule 4(1)(a) of the Rules,
2001 is that the incumbent should directly be
appointed on daily wage basis before
29.6.1991 and is continuing in service as
such on the date of commencement of the
Rules.

 17. The respondents have admitted
in the said case that the petitioners fulfill all
the three conditions mentioned in Rule-4 of the
Rules, 2001 except their continuous service.
This fact clearly demonstrates that the issue in
respect of the three conditions i.e. (i) their
engagement should be of prior to 1991; (ii)
they have requisite qualification required for
the regular appointment; and (iii) they are
continuing in service, cannot be re-opened by
the respondents in subsequent proceedings as
the admitted position noted by the Court has
not been challenged by the respondents.
Hence, the only question which requires
consideration is that whether the ground for
rejection of their regularization that they are
continuously working, is to be considered."

9. In view of the above, I do not find
any manifest error in the order impugned.

10. Petition lacks merit and is
accordingly dismissed.
----------
(2024) 7 ILRA 142
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.07.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ A No. 50923 of 2008

Anwar Ahmad Siddiqui ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
7 All. Anwar Ahmad Siddiqui Vs. State of U.P. & Ors.
143
Counsel for the Petitioner:
Anoop Kumar Srivastava, Ajeet Singh,
Jitendra Rana, P.C. Srivastava

Counsel for the Respondents:
C.S.C., B. Dayal, Kuldeep Singh Chuahan

A.
Service
Law
- Retrospective
regularization - A retrospective regularization
if restores seniority, then fixation of salary/ pay
scale of an employee cannot be lower than that
of other employee/ employees who is/ are
junior to him. (Para 7)

B. By the impugned order, the pay fixation and
promotional pay scale awarded to the petitioner,
taking him to have been regularized with effect
from 27.09.1991, was cancelled. Held - In the
resolution
adopted
by
the
development
authority conferring retrospective regularization
clearly stated that no pecuniary benefits were to
be given to the petitioner however, the
resolution does not specify that the period for
which the petitioner was given regularization
(i.e., between 27.09.1991 and 29.01.2001)
would not be counted for future benefits, such
as time scale, selection pay, ACP benefits, etc.
The phrase salary benefits, etc. would not be
admissible should be understood to mean that
no arrears of salary would be given to the
petitioner.
While
the
resolution
grants
retrospective regularization and preserves the
petitioner's seniority, it implies that this period
can be accounted for future pay scale and other
service benefits, such as ACP benefits, time
scale benefits, and selection grade benefits.
Impugned order quashed (Para 6)

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Shri Jitendra Rana, learned
counsel for the petitioner and Shri Ramesh
Kumar Singh, learned Advocate holding
brief of Shri B.Dayal, learned counsel for
respondents No. 2 and 3.

2. Petitioner before this Court who
had been working as accounts clerk with
the concerned local body has assailed the
order passed by the vice-chariman of the
Meerut
Development
Authority
dated
12.09.2008 whereby the pay fixation and
the promotional pay scale awarded to the
petitioner taking him to have been
regularized with effect from 27.09.1991 has
been cancelled.

3. The submission advanced on
behalf of the petitioner is that once the
petitioner was given regularization with
effect from 27.09.1991 when other persons
junior to him were regularized as accounts
clerk by the development authority, the
natural consequence was to give him pay
protection in terms of promotional pay
scale and incidental benefits as per
Acquired Career Progression Scheme. He
submits that since regularization order was
passed by the development authority and
approved by the then secretary of the
development
authority
and
the
vice
president also clearly provided that the
petitioner would not be given any salary
benefit, it was clear that the petitioner
would not be paid any arrears of salary for
the period 27.09.1991 to 29.01.2001,
however, he further submits, the selection
made and the promotional avenues that
were conferred upon the petitioner, were
only made admissible upon his attaining
requisite period of service i.e. 10 years and
14 years and these service time period has
naturally fallen after the petitioner was
given his first posting on 29.01.2001.
According to him, therefore, period running
from 27.09.1991 and 29.01.2001 was
certainly to be reckoned with as there was
no such rider in the order and the resolution
adopted by the development authority
regarding benefits to be conferred upon
him
by
way
of
seniority
for
his
retrospective
regularization.
Thus,
according to learned counsel all the
pecuniary benefits of time scale selection,
etc. stood conferred upon him taking into
144 INDIAN LAW REPORTS ALLAHABAD SERIES
consideration his service period between
27.09.1991 and 29.01.2001 and there was
no fallible error on part of the development
authority in doing so which may have
warranted
interference
by
the
vice
chariman under the impugned order and yet
he has been penalized. It is also argued that
the order impugned definitely had adverse
consequences and, therefore, the petitioner
ought to have been served upon with prior
notice much less a show cause notice, at
least, to offer his explanation before
passing any such order.

4. Learned counsel for the
contesting respondent has sought to defend
the order impugned herein this writ petition
on the ground that since there no pecuniary
benefit was to be given under the earlier
order of regularization dated 23.02.2007
giving seniority to the petitioner wef
27.09.1991, the petitioner was definitely
not entitled to any benefit in terms of time
scale pay, etc. However, in the entire
counter affidavit not a single avernment has
come up that the petitioner was conferred
with any pecuniary benefit as such towards
the arrears or increment between the period
27.09.1991 to 29.01.2001. All that he has
argued is that even the time scale and other
benefits could not have been conferred
upon taking the service in question into
account. Learned counsel for the local body
has, admitted this fact that there is no such
avernment in the counter affidavit that the
order did not confer upon the petitioner
with regularization w.e.f 27.09.1991, had
never been recalled at any point of time.

5. Having heard learned counsel
for the respective parties and having
perused the records particularly the order
dated 16.05.2008 as approved by the vice
Chairman, I find that petitioner though was
given effective appointment on 29.01.2001
upon retirement of one Ravindra Kumar the
then accounts clerk but the development
authority detected a serious error in not
giving regularization to the petitioner on
14.02.1991 when instead of four persons
in the general category, two persons in the
SC category and one person in the OBC
category, five persons were appointed in
the general category leaving the OBC quota
completely unfilled and diverting the OBC
category posts to the general category. It is
an admission in the resolution adopted by
the development authority itself that this
was a serious error that had occurred and
petitioner deserved regularization in the
year 1991 itself and this was how by means
of the said resolution the error was sought
to be rectified at later point of time.

6. From the perusal of the
resolution it clearly transpires that no
pecuniary benefits were liable to be given
to the petitioner only for the reason that
since regularization was being given effect
to retrospectively, as well as the seniority.
However, the resolution does not say that
the period for which the petitioner is given
regularization i.e. between 27.09.1991 and
29.01.2001, would not be counted for
future benefits, time scale, selection pay,
ACP benefits, etc. The words "???? ??? ??
??? ???? ??? ????" salary benefits, etc.
would not be admissible, would be taken to
mean only that no arrears of salary shall be
given to the petitioner for simple reason
that he was being regularized with
retrospective effect. This obviously would
be the correct interpretation of resolution
for the simple reason that the petitioner did
not work as accounts clerk during the
relevant period. The settled legal principle
'no work no pay' would certainly be
attracted. But while the resolution gives
retrospective regularization and protects
seniority of the petitioner, as such it would
7 All. Ajay Kumar Shukla Vs. State of U.P. & Anr.
145
definitely mean that this period could be
accountable for the purposes of future pay
scale and other service benefits like ACP
benefits, time scale benefits and selection
grade benefits. In the impugned order
which has been passed, there is no mention,
nor I find to be any recital to this effect that
petitioner was given any pecuniary benefit
and thereby arrears of salary or arrears
otherwise of dues for the period running
between 27.09.1991 till 29.01.2001. All
these fixation of selection grade, etc. has
been done only after 29.01.2001 when the
petitioner got substantive appointment as
accounts clerk and started working as such.

7. Even otherwise a retrospective
regularization if restores seniority, then
fixation of salary/ pay scale of an employee
cannot be lower than that of other
employee/ employees who is/ are junior to
him. This if is permitted will lead to
arbitrariness and discrimination and so
should be hit by Article 14 of the
Constitution petitioner is to be protected
considering entire period of service, may be
arrears of salary for the period are not paid
.

8. In view of the above, therefore,
the resolution adopted by the development
authority and the approval thereof by the
vice chairman dated 12.09.2008 impugned
herein
this
writ
petition
cannot
be
sustained.

9. It is stated at the Bar that the
petitioner has already attained the age of
superannuation. Accordingly, resolution of
the board and and the approval thereof by
the Vice Chairman dated 12.09.2008
annexure No.12 to the writ petition is
hereby quashed. Whatever the dues have
remained withheld only on account of
impugned order which has been set aside
today, shall be paid to the petitioner
forthwith within a period of three months
from the date of production of certified
copy of this order. If the petitioner is
receiving pension, the same shall be revised
and fixed, accordingly. It is made clear that
if the arrears as directed herein above, are
not paid within the stipulated period of time
as prescribed above, petitioner shall be
entitled to interest at the rate of 12% from
the date of expiry of three months till actual
payment is made.

10. This petition thus, stands
allowed accordingly.
----------
(2024) 7 ILRA 145
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.07.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ A No. 52949 of 2016

Ajay Kumar Shukla ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Shreya Gupta

Counsel for the Respondents:
C.S.C., A.K.S. Parihar, Ashok Kumar Yadav

A. Service matter-Constitution of India,
1950-Article
226-selection/appointment
of lecturers-petitioner participated in the
examination-second revised answer key
was published in which answers to
questions no.s 59 and 81 were not revised
inspite
of
the
petitioner's
objections
while question no. 117 was revised,
although the same was not in disputemandamus
issued
directing
the
respondent to re-evaluate the answer-