# Badrul Hasan Alvi v. State of U.P. & Ors

- **Citation:** (2015) 2 ILRA 752
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-04-10
- **Case number:** C.M.W.P. No. 45926 of 2006
- **Bench:** Mahesh Chandra Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/badrul-hasan-alvi-v-state-of-u-p-ors-43172
- **Pages:** 9

## Headnote

Constitution of India, Art.-226-Benefit of
salary and other consequential benefitworking promotional post purely temporary
arrangement-promotion with stipulation of
reversion on appointment of regular selected
candidates or any infirmity in workingadmittedly
for
34
years
working
on
promotional post-junior and other similarly
situated persons getting benefit-held-by
long period of working petitioner-possessing
experience-rejection
of
claim
as
per
regulation 1993 on ground of not possessing
requisite qualification-not proper-petitioner
entitled for every consequential benefit as
junior engineer.
Held: Para-17
The judgements cited by learned counsel
for the petitioner are fully applicable to the
petitioner's
case.
If
a
worker
gains
sufficient experience after serving several
years in the department, he cannot be
refused confirmation on the ground that he
did not possess requisite qualifications. The
petitioner worked on the promoted post for
a substantial period of time without being
questioned by the respondents and at the
fag end of his retirement he cannot be
denied confirmation.
Case Law discussed:
1990 AIR (SC) 371; Civil Appeal No. 2835 of
2015; (1993) 3 SCC 237.

## Text

752
 INDIAN LAW REPORTS ALLAHABAD SERIES
12. Thus imposition of punishment of
withholding of integrity in respect of a police
officer of subordinate rank, is without
authority of law since such punishment is not
provided in Rule 4 of the Rules 1991. Holding
departmental proceedings and recording a
finding of guilt against any delinquent and
imposing the punishment for the same is a
quasi-judicial function and not administrative
one. Imposing the punishment for a proved
delinquency is regulated and controlled by the
statutory rules. Therefore, while performing
the quasi-judicial functions, the authority is
not permitted to ignore the statutory rules
under which punishment is to be imposed.
The disciplinary authority is bound to give
strict adherence to the said rules.
13. Thus the punishment of
withholding integrity awarded to the
petitioner and upheld by the impugned
order dated 3rd April, 2000 being outside
the purview of Rule 4 of the Rules 1991,
is a nullity. Consequently the impugned
order is set aside.
14. In result the writ petition
succeeds and is hereby allowed. However
there shall be no order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.04.2015
BEFORE
THE HON'BLE MAHESH CHANDRA TRIPATHI, J.
C.M.W.P. No. 45926 of 2006
Badrul Hasan Alvi
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri S.F.A. Naqvi
Counsel for the Respondents:
C.S.C.
Constitution of India, Art.-226-Benefit of
salary and other consequential benefitworking promotional post purely temporary
arrangement-promotion with stipulation of
reversion on appointment of regular selected
candidates or any infirmity in workingadmittedly
for
34
years
working
on
promotional post-junior and other similarly
situated persons getting benefit-held-by
long period of working petitioner-possessing
experience-rejection
of
claim
as
per
regulation 1993 on ground of not possessing
requisite qualification-not proper-petitioner
entitled for every consequential benefit as
junior engineer.
Held: Para-17
The judgements cited by learned counsel
for the petitioner are fully applicable to the
petitioner's
case.
If
a
worker
gains
sufficient experience after serving several
years in the department, he cannot be
refused confirmation on the ground that he
did not possess requisite qualifications. The
petitioner worked on the promoted post for
a substantial period of time without being
questioned by the respondents and at the
fag end of his retirement he cannot be
denied confirmation.
Case Law discussed:
1990 AIR (SC) 371; Civil Appeal No. 2835 of
2015; (1993) 3 SCC 237.
(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.)
1. Heard Shri S.F.A. Naqvi, learned
counsel for the petitioner and learned
Standing Counsel for the respondents.
2. By this writ petition the petitioner
has prayed for following reliefs:-
"(i) issue a writ, order or direction in
the nature of certiorari quashing the
impugned order dt.19.05.2006 passed by
respondent
no.2
(Annexure
No.1).
2 All]
 Badrul Hasan Alvi Vs. State of U.P. & Ors.
753
(ii) issue a writ, order or direction in
the nature of mandamus directing and
commanding the respondents to regularize
the services of the petitioner on the post of
Junior Engineer as well as to grant super
time pay scale in the said cadre with effect
from the date upon which the petitioner was
promoted upon the post of Junior Engineer
and all other consequential benefits, which in
normal circumstance is payable to a
confirmed Junior Engineer.
(iii) issue a writ, order or direction
in the nature of mandamus directing and
commanding the respondents to pay
interest at the permissible rate, which this
Hon'ble Court may deem fit and proper
upon all the financial benefits which are
liable to be paid by the respondent
authorities in pursuance of grant of
consequential reliefs claimed in relief
no.2.
(iv) issue a writ, order or direction,
which this Hon'ble Court may deem fit
and proper in the circumstances of the
case.
(v) award the cost of the petition in
favour of the petitioner."
3.
Brief facts giving rise to the writ
petition are that the petitioner was appointed
on the post of Civil Draftsman vide order
dated 16th August, 1967. Thereafter, the
petitioner was promoted on the post of
Overseer by order dated 25.10.1972. The
post of Overseer is now known as Junior
Engineer. While promoting the petitioner on
the post of Overseer it was mentioned in the
promotion order dated 25.10.1972 that in
case the work of the petitioner was not found
satisfactory or a qualified Overseer is
appointed, the petitioner will be reverted
back to his original post of Draftsman. It is
submitted by learned counsel for the
petitioner that the petitioner was working on
the post of Junior Engineer till he attained the
age of superannuation in the year 2006. It is
submitted that at the time of initial induction
in service he had the requisite qualifications.
No other person was appointed on the said
post in which the petitioner was working. It
is averred that the entire career of the
petitioner was unblemished and the petitioner
was never granted any adverse entry during
his career. It is also submitted that under
Rule 4 of the U.P. Government Servant
Confirmation Rules, 1991 the petitioner is
fully qualified to be confirmed on the said
post.
4. It is also submitted that other
similarly placed persons who were
appointed
simultaneously
with
the
petitioner as Draftsman were promoted
and confirmed on the post of Junior
Engineer after 1972 and they were also
awarded consequential benefits. This
shows
that
the
petitioner
was
discriminated by the respondents. In
paragraphs 14, 15 and 16 of the writ
petition the petitioner has given the
examples of similarly situated persons,
who have been promoted and confirmed
on the post of Junior Engineer.
5. Learned counsel for the petitioner
prayed that the petitioner should be
promoted and confirmed on the post of
Junior Engineer by the department and all
consequential benefits should also be
given to him.
6.
Petitioner's learned counsel further
submits that it is well settled that the person
who had worked for a considerable long
period on a particular post and had obtained
practical experience he should not be denied
regularisation on the said post. It was
mentioned in the promotion order that the
petitioner will be reverted back to his original
post of Draftsman if his work will not be
754
 INDIAN LAW REPORTS ALLAHABAD SERIES
found satisfactory or a qualified Overseer
(Junior Engineer) is appointed on the said
post. Neither any complaint was ever lodged
against the petitioner nor any qualified
person was appointed on the said post, hence,
the petitioner should be confirmed on the
post of Junior Engineer.
7. The petitioner has made several
representations to the respondents to
promote him on the said post but the
respondents had not paid any attention on
the grievance of the petitioner. Aggrieved
with this attitude of the respondents the
petitioner had earlier filed a writ petition
bearing Writ Petition No.889 of 2006
(Badrul Hasan Alvi v. State of U.P. &
Ors.) in which Hon'ble Court has passed
the following order on 6.1.2006:-
"Petitioner on the strength of his
working as Junior Engineer since 1972
seeks regularisation as well as other
monetary benefits which have become
legally due to him as a consequence to the
regularisation. Petitioners in that regard
has already made a representation dated
13.4.2005 which is pending consideration
before respondent no. 3. Hence the
present writ petition.
In the facts and circumstances of the
case writ petition is disposed of with a
direction upon respondent no. 2 to
consider and decide the representation by
means of a reasoned speaking order
strictly in accordance with law preferably
within four weeks from the date a certified
copy of this order is filed before him.
Respondent no. 2 shall pass a reasoned
speaking order."
8. In pursuance of the order passed
by this Hon'ble Court the respondents
considered the claim of the petitioner and
rejected the same by the impugned order
dated 19.5.2006 stating that as he is not
holding the requisite qualifications for the
said post, he cannot be regularised on the
post.
9. Learned counsel for the petitioner, in
support of his claim, has placed reliance on
the judgement in Bhagwati Devi v. Delhi
State Mineral Development Corporation,
1990 AIR (SC) 371 in which it was held that
the workers not possessing prescribed
educational qualification at the time of
appointment and they gained sufficient
experience after service of several years,
confirmation of such employees cannot be
refused on the ground that at the time of
appointment they did not possess requisite
qualifications. If a worker is allowed to work
for a considerable length of time, it would be
hard and harsh to deny him the confirmation
in the respective post on the ground that he
lacks the prescribed qualifications.
10. Learned counsel for the
petitioner has also placed reliance on a
recent judgment of Hon'ble Supreme
Court in Civil Appeal No.2835 of 2015
(Amarkant Rai vs. State of Bihar & ors)
decided on 13.3.2015. The relevant
paragraph nos. 11 to 17 of the judgment
are reproduced hereinafter:-
"11. As noticed earlier, the case of the
appellant was referred to Three Members
Committee and Three Members Committee
rejected the claim of the appellant declaring
that his appointment is not in consonance
with the ratio of the decision laid down by
this Court in Umadevi's case (supra). In
Umadevi's case, even though this Court has
held that the appointments made against
temporary or ad-hoc are not to be
regularized, in para 53 of the judgment, it
provided that irregular appointment of duly
qualified persons in duly sanctioned posts
2 All]
 Badrul Hasan Alvi Vs. State of U.P. & Ors.
755
who have worked for 10 years or more can
be considered on merits and steps to be taken
one time measure to regularize them. In para
53, the Court observed as under:-
"53. One aspect needs to be clarified.
There may be cases where irregular
appointments (not illegal appointments) as
explained in S.V. Narayanappa, R.N.
Nanjundappa and B.N. Nagarajan and
referred to in para 15 above, of duly
qualified persons in duly sanctioned vacant
posts might have been made and the
employees have continued to work for ten
years or more but without the intervention of
orders of the courts or of tribunals. The
question of regularisation of the services of
such employees may have to be considered
on merits in the light of the principles settled
by this Court in the cases abovereferred to
and in the light of this judgment. In that
context, the Union of India, the State
Governments and their instrumentalities
should take steps to regularise as a one-time
measure, the services of such irregularly
appointed, who have worked for ten years or
more in duly sanctioned posts but not under
cover of orders of the courts or of tribunals
and should further ensure that regular
recruitments are undertaken to fill those
vacant sanctioned posts that require to be
filled up, in cases where temporary
employees or daily wagers are being now
employed. The process must be set in motion
within six months from this date. We also
clarify that regularisation, if any already
made, but not sub judice, need not be
reopened based on this judgment, but there
should be no further bypassing of the
constitutional requirement and regularising
or making permanent, those not duly
appointed as per the constitutional scheme."
The objective behind the exception
carved out in this case was prohibiting
regularization of such appointments,
appointed persons whose appointments is
irregular but not illegal, ensure security
of employment of those persons who
served the State Government and their
instrumentalities for more than ten years.
12. Elaborating upon the principles
laid down in Umadevi's case (supra) and
explaining
the
difference
between
irregular and illegal appointments in
State of Karnataka & ors vs. M.L. Kesari
& ors (2010) 9 SCC 247, this Court held
as under:
"7. It is evident from the above that
there is an exception to the general
principles
against
"regularisation"
enunciated in Umadevi (3), if the
following conditions are fulfilled:
(i) The employee concerned should
have worked for 10 years or more in duly
sanctioned post without the benefit or
protection of the interim order of any
court or tribunal. In other words, the
State Government or its instrumentality
should have employed the employee and
continued him in service voluntarily and
continuously for more than ten years.
(ii)
The
appointment
of
such
employee should not be illegal, even if
irregular. Where the appointments are not
made or continued against sanctioned
posts or where the persons appointed do
not possess the prescribed minimum
qualifications, the appointments will be
considered to be illegal. But where the
person employed possessed the prescribed
qualifications and was working against
sanctioned posts, but had been selected
without undergoing the process of open
competitive selection, such appointments
are considered to be irregular."
13. Applying the ratio of Umadevi's
case, this Court in Nihal Singh & ors vs.
State of Punjab & ors (2013) 14 SCC 65
directed the absorption of the Special
756
 INDIAN LAW REPORTS ALLAHABAD SERIES
Police Officers in the services of the State
of Punjab holding as under:
"35. Therefore, it is clear that the
existence of the need for creation of the posts
is a relevant factor with reference to which
the executive government is required to take
rational
decision
based
on
relevant
consideration. In our opinion, when the facts
such as the ones obtaining in the instant case
demonstrate that there is need for the
creation of posts, the failure of the executive
government to apply its mind and take a
decision to create posts or stop extracting
work from persons such as the appellants
herein for decades together itself would be
arbitrary action (inaction) on the part of the
State.
36. The other factor which the State is
required to keep in mind while creating or
abolishing posts is the financial implications
involved in such a decision. The creation of
posts necessarily means additional financial
burden on the exchequer of the State.
Depending upon the priorities of the State,
the allocation of the finances is no doubt
exclusively within the domain of the
legislature. However in the instant case
creation of new posts would not create any
additional financial burden to the State as
the various banks at whose disposal the
services of each of the appellants is made
available have agreed to bear the burden. If
absorbing the appellants into the services of
the State and providing benefits on a par
with the police officers of similar rank
employed by the State results in further
financial commitment it is always open for
the State to demand the banks to meet such
additional burden. Apparently no such
demand has ever been made by the State.
The result is-the various banks which avail
the services of these appellants enjoy the
supply of cheap labour over a period of
decades. It is also pertinent to notice that
these banks are public sector banks."
14. In our view, the exception carved out
in para 53 of Umadevi is applicable to the
facts of the present case. There is no material
placed on record by the respondents that the
appellant has been lacking any qualification
or bear any blemish record during his
employment for over two decades. It is
pertinent to note that services of similarly
situated persons on daily wages for
regularization viz. one Yatindra Kumar
Mishra who was appointed on daily wages on
the post of Clerk was regularized w.e.f. 1987.
The appellant although initially working
against unsanctioned post, the appellant was
working continuously since 03.1.2002 against
sanctioned post. Since there is no material
placed on record regarding the details
whether any other night guard was appointed
against the sanctioned post, in the facts and
circumstances of the case, we are inclined to
award monetary benefits be paid from
01.01.2010.
15.
Considering
the
facts
and
circumstances of the case
that the
appellant has served the University for
more than 29 years on the post of Night
Guard and that he has served the College
on daily wages, in the interest of justice,
the authorities are directed to regularize
the
services
of
the
appellant
retrospectively w.e.f. 03.01.2002 (the date
on which he rejoined the post as per
direction of Registrar).
16. The impugned order of the High
Court in LPA No.1312 of 2012 dated
20.02.2013 is set aside and this appeal is
allowed. The authorities are directed to
notionally regularize the services of the
appellant
retrospectively
w.e.f.
03.01.2002, or the date on which the post
became vacant whichever is later and
without monetary benefit for the above
period. However, the appellant shall be
entitled
to
monetary
benefits
from
01.01.2010. The period from 03.01.2002
2 All]
 Badrul Hasan Alvi Vs. State of U.P. & Ors.
757
shall be taken for continuity of service
and pensionary benefits.
17. The appeal is allowed in terms of
the above. No order as to costs."
11. Learned counsel for the
petitioner has also placed reliance on the
judgement of Hon'ble Supreme Court
reported in (1993) 3 SCC 237 (Bhaskar
Gajanan Kajrekar v. Administrator, Dadra
and
Nagar
Haveli),
in
which
in
paragraphs 3 to 7 it is observed as under:-
"3. Kajrekar was not given pension on
the ground that throughout his service he
worked on officiating basis and was never
appointed substantively to any of the posts
held by him. Kajrekar challenged the action
of the respondents, denying pension to him,
before the Central Administrative Tribunal,
Bombay.
The
Tribunal
rejected
his
application on the ground that he retired
from service without holding lien on any
substantive post and as such was not entitled
to pension under Rule 13 of the Central Civil
Services (Pension) Rules, 1972 (the Rules).
The application of Kajrekar was disposed of
ex-parte by the Tribunal and his prayer for
restoration and hearing was also rejected.
These appeals by way of special leave
petitions are against the orders of the
Central Administrative Tribunal.
4. It is not disputed that the post of
Chief of Police under Dadra and Nagar
Haveli
Administration
was
declared
permanent with effect from June 14, 1967.
On that date the appellant had already put in
about thirteen years of service but his case
for confirmation was not considered on the
ground that there were no Recruitment Rules
for the post in existence. The Recruitment
Rules for the post of Chief of Police under
the Administration of Dadra and Nagar
Haveli came into force on January 19, 1980.
The said Rules provided "by transfer on
deputation" as the method of recruitment to
the post of Chief of Police. The Recruitment
Rules have no relevance to the question of
confirmation of the appellant as he had
retired from service on January 31, 1977
much before the coming into force of the
Recruitment Rules. It was incum- bent on the
respondents to have considered the question
of confirmation of the appellant before his
retirement, specially when he was being
retired after serving the respondents for
twenty three years. It was wholly arbitrary
on the part of the respondents to have kept
the appellant as an unconfirmed employee
for a period of twenty three years on the
ground that there were no Recruitment Rules
for the post he was holding.
5. The Union Territory of Dadra and
Nagar Haveli in its counter filed in this
Court has stated that after the publication
of
the
Recruitment
Rules
63
a
Departmental Promotion Committee was
convened on July 4, 1981 for considering
the question of confirmation of the
appellant as Chief of Policy. The
Departmental Promotion Committee did
not
recommend
the
appellant
for
confirmation on the ground that during
the
course
of
his
service,
two
departmental enquiries were instituted
against the appellant. The enquiries could
not be completed before the appellant's
retirement and the findings were made
available thereafter. The proceedings of
the Departmental Promotion Committee
further show that as a result of the
enquiries Rs. 4,000 was to be deducted
from the gratuity amount of the appellant
as a measure of punishment. The
Departmental
Promotion
Committee
found that the confidential reports of the
appellant for the last three years were
good but the Committee declined to
recommend confirmation because of the
two enquiries.
758
 INDIAN LAW REPORTS ALLAHABAD SERIES
6. It is not disputed that the findings in
the two enquiries were never communicated
to the appellant during the period of his
service. Those were served on him only after
retirement. The question of his confirmation
which was due in the year 1967 could not
have been linked with the enquiries which
were initiated at a much later stage. The
Departmental Promotion Committee should
have
considered
the
appellant
for
confirmation on the basis of the record of the
appellant as existed in the year 1967/1968.
There is no material before us to show that
the service record of the appellant prior to
1970 was adverse in any manner rather the
averments made by the appellant in the
rejoinder to the effect that there was nothing
adverse against him on the record prior to
1971, have not been controverted. Even the
Departmental Promotion Committee found
the confidential reports of the appellant for
the last three years as good. We are of the
view that on the availability of a permanent
post of Chief of Police on June 14, 1967 the
appellant was entitled to be confirmed
against the said post. It was wholly arbitrary
for the respondents to have deferred the
question of confirmation of the appellant on
the ground that there were no Recruitment
Rules. We, therefore, hold that the appellant
having served the respondents for about
thirteen years on June 14, 1967 when the
post of Chief of Police was made permanent
and there being nothing adverse against him
at that point of time, he was entitled to be
confirmed in the said post. In that view of the
matter the appellant was a confirmed
employee when he retired from service on
July 31, 1977.
7.
We,
therefore,
direct
the
respondents to treat the appellant as
having 64 been retired as a confirmed
employee and fix his pension and other
post-retiral benefits on that basis. We
further direct the respondents to complete
the pension case of the appellant within
three months from today and pay him all
the arrears of the pension within two
months thereafter alongwith 12% interest
on the said arrears. We allow the appeals
with costs which we quantify as Rs.
10,000."
12. Learned counsel for the
petitioner submits that in the similar
circumstances
the
department
had
promoted one Shri Ram Dutt Sharma son
of Shri Asha Ram Sharma, who had
passed only High School and was
working
as
Civil
Draftsman,
was
confirmed in the cadre of Junior Engineer.
He had been placed at Sl.No.14-A in the
seniority list between Shri Vakil Ahmad
(Sl.No. 14) and Shri Hari Mohan Yadav
(Sl.No. 15) vide order dated 27.6.1992,
whereas in the case of the petitioner, the
respondents had denied the right on the
ground that the petitioner did not have the
requisite qualification. It had also been
reiterated that Shri Ram Dutt Sharma had
also not obtained any such degree or
diploma from the Rural Engineering
College and had been placed in the cadre
of
Junior
Engineer
and
as
such
discrimination has been made, which is
also
violative
of
Art.14
of
the
Constitution of India.
13.
Controverting the petitioner's
stand, learned counsel for the respondents
states that the petitioner was initially
appointed on the post of Civil Draft Man. He
did not have the requisite qualifications for
the post of Junior Engineer/ Overseer as
provided under the Rules. By the promotion
order dated 25.10.1972 it was clearly stated
that the petitioner is temporarily posted on
the post of Overseer/ Junior Engineer in a
stop gap arrangement subject to qualified
Overseer is appointed or his work and
2 All]
 Badrul Hasan Alvi Vs. State of U.P. & Ors.
759
conduct is found satisfactory. The sole
contention of the respondents is that the
petitioner did not have the requisite
qualifications for the post of Junior Engineer
and the impugned order has been passed
reasonably.
14. Having heard the rival contentions
of learned counsel for the parties, perusing the
record and considering the judgements cited at
the bar, I find that the petitioner was appointed
on the post of Civil Draft Man on 16th
August, 1967. He was promoted on the post
of Overseer (now known as Junior Engineer)
by order dated 25.10.1972. After serving on
the promoted post for about 34 years, he
retired
after
attaining
the
age
of
superannuation. The department slept over the
matter of the petitioner for about 34 years and
the petitioner had been regularly working on
the post of Junior Engineer without being
confirmed. When after making repeated
representations nothing has been done by the
respondents, he had taken the shelter of writ
jurisdiction. When writ court has given some
relief
of
deciding
representation,
the
department
awakened
and
passed
the
impugned order at the fag end of the
retirement of the petitioner. The department
has overlooked the service of the petitioner for
about 34 years and passed the impugned order
merely on the ground that he did not have
requisite qualification for the post. The
promotion order was passed with the
condition that the petitioner will work on the
post until the regularly selected candidate
joins or his work and conduct was found
unsatisfactory. The petitioner's work and
conduct was never questioned by the
respondents at any point of time in 34 years of
service on promoted post and no qualified
Overseer was appointed on the said post.
15. In the present matter while denying
the claim of the petitioner the respondents
have set out their case that although the
petitioner was appointed on the post of Civil
Draftsman but did not have the requisite
qualifications for the post of Junior Engineer/
Overseer as per the U.P. Engineering Service
(Irrigation Department) (Group-B) Service
Regulations,
1993,
governing
the
recruitments, and terms and conditions of the
appointment. Even in the order dated
25.10.1972 it was clearly provided that the
petitioner was temporarily promoted to the
post of Overseer in a stop gap arrangement
with condition that in case qualified Overseer
is appointed by the Director, Agriculture, the
petitioner will be reverted.
16. It is not disputed that the
petitioner had been given charge vide
order dated 25.10.1972 as Overseer in a
stop gap arrangement with condition that
in case qualified Overseer is appointed by
the Director, Agricultural, the petitioner
would
be
reverted.
Nowhere
the
respondents had denied the fact that since
25.10.1972 the petitioner had not worked
over the said post or he was not fit for the
said assignment and as such he could not
perform the technical work. Therefore, at
this belated stage, the respondents cannot
take this plea that at the initial stage in the
year 1972 the petitioner did not have the
requisite qualification and as such he is
not entitled for the Super Time Pay Scale
and other benefits of Junior Engineer. It is
admitted case that the petitioner continued
to discharge the duty on the post of Junior
Engineer/ Overseer. Therefore, at such
belated stage after lapse of more than 34
years of his career the department is
precluded from taking technical view that
at the initial stage while assigning the
work the petitioner did not have requisite
qualifications. Admittedly the petitioner
discharged
his
duties
with
utmost
sincerity and no adverse material has been
760
 INDIAN LAW REPORTS ALLAHABAD SERIES
placed before this Court to indicate that
the petitioner failed to do substantial
justice with the said post.
17.
The judgements cited by learned
counsel for the petitioner are fully applicable
to the petitioner's case. If a worker gains
sufficient experience after serving several
years in the department, he cannot be refused
confirmation on the ground that he did not
possess
requisite
qualifications.
The
petitioner worked on the promoted post for a
substantial period of time without being
questioned by the respondents and at the fag
end of his retirement he cannot be denied
confirmation.
18. With the aforesaid observations,
the
writ
petition
is
allowed.
The
impugned order dated 19.05.2006 is
hereby set aside. The petitioner is entitled
to get all the benefits, which have been
given to similarly situated persons, from
the same date. The said exercise shall be
completed by the respondents within a
period of two months from the date of
production of certified copy of this order.
19. There shall be no order as to
costs.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.04.2015
BEFORE
THE HON'BLE SUNEET KUMAR, J.
C.M.W.P. No. 54978 of 2014
Raj Kumar Agarwal
 ...Petitioner
Versus
Suresh Chandra Jain
...Opp. Party
Counsel for the Petitioner:
Sri S.N. Verma, Sri Sarvan Kumar Mishra
Counsel for the Respondents:
Sri Amitabh Patel
C.P.C.-Order IX Rule 13-Application to
recall ex-parte decree-without showing
sufficient cause for non appearancejudgment passed on merit-can not be
recalled-without
disclosing
date
and
particular of negotiation on compromisemere story of compromise can not be
believed-Courts
below-justified
in
rejection of application to recall the
judgment passed on merit.
Held: Para-23
In such circumstances, I do not find any
merit in the contention of the petitioner.
The Court below was not justified in
rejecting the application to recall the
judgment and ex parte decree merely on
the ground that the judgment and
decree was passed on merits.
Case Law discussed:
(2009) 2 SCC 205; 1964 SC 993; (2011) 3 SCC
545; (2000) 3 SCC 54; AIR 1962 SC 257; AIR
1930 Cal 488; (2005) 1 SCC 787.
(Delivered by Hon'ble Suneet Kumar, J.)
1. Heard learned counsel for the
parties.
2. The respondent/landlord filed an
application under Section 21 (1)(a) of Act
No. 13 of 1972 for release of the shop in
dispute. The application was allowed exparte on 12 December 2011 by the
Prescribed
Authority.
Aggrieved,
petitioner made an application under
Order 9 Rule 13 of Code of Civil
Procedure stating that he could not appear
on the date of hearing for the reason that
he was trying to settle the dispute outside
the Court with the respondent/landlord.
The settlement could not be reached,
therefore, he did not appear on the date
fixed for hearing. The Authority by order