# Balram Yadav v. D.J., Maharajganj & Anr

- **Citation:** (2023) 11 ILRA 896
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-03
- **Case number:** Writ-A No. 36716 of 1998
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/balram-yadav-v-d-j-maharajganj-anr-49435
- **Pages:** 6

## Headnote

A. Service Law - Right to equality - UP
Regularization
of
Daily
Wages
Appointments on Group D Posts Rules,
2001- R. 4 - Regularization - Identical
11 All. Balram Yadav Vs. D.J., Maharajganj & Anr.
897
placed persons were regularized - Effect -
Held, petitioner's claim in the light of the
Rules of 2001 cannot be ignored, more so,
when identically placed persons, who
were also included in the list after serial
No. 29 onwards, have already been
regularized during the pendency of writ
petition - Petitioner is also entitled for
equal treatment. (Para 13)
B. Service Law - Termination - Charge of
negligence causing an incident of water
logging into the rest room of Additional
Judge leveled - Proof of role, how far bear
significance - Held, the petitioner was
terminated without assigning any role to
him in the alleged incident of water
logging
-
High
Court
found
the
termination order unsustainable. (Para 4,
10 and 15)
C. Pleading - Improvement of case
through affidavit - Permissibility - Can
the defence be taken in the counter
affidavit, which is not reflected in the
impugned order - Mohinder Singh Gill's
case relied upon - Held, the respondents
cannot improve their case on the basis of
affidavits only. (Para 12)
Writ petition allowed. (E-1)
List of Cases cited:

## Text

896 INDIAN LAW REPORTS ALLAHABAD SERIES

25. In view of what this Court has
found above, we are of the considered
opinion that the impugned orders dated
07.12.2021 passed by the Chairman of the
Corporation and the order dated 17.09.2022
passed by the Board of Directors of the said
Corporation cannot be sustained.

26. In the result, this petition succeeds
and is allowed. The impugned order dated
07.12.2021 passed by the Chairman, U.P.
Power Corporation, Lucknow and the order
dated 17.09.2022 passed by the Board of
Directors of the Corporation are hereby
quashed. A mandamus is issued to
reinstate
the
petitioner
in
service
forthwith. The petitioner shall be entitled
to salary from the date of this judgment. It
will, however, be open to the respondents
to proceed afresh against the petitioner
from the stage the charge-sheet was issued
to him and conclude the disciplinary
proceedings expeditiously, wherein the
petitioner will cooperate. If the respondents
elect to take fresh proceedings, the
petitioner shall not be entitled to any
backwages,
until
conclusion
of
all
disciplinary proceedings against him and
final orders being made. In the event, fresh
proceedings are taken and the petitioner is
finally
reinstated
in
service,
the
respondents will decide upon the issue of
backwages to be paid to the petitioner for
the period that he has remained out of
service. But in that event, the petitioner
would
be
entitled
to
seniority
and
continuity in service. It is also made clear
that upon reinstatement in terms of this
judgment, it would be open to the
respondents, either to take work from the
petitioner, or not assign him duties during
pendency of the disciplinary proceedings,
the
further
course
of
action
being
dependent upon the outcome of the
proceedings, as indicated above. The
petitioner upon reinstatement in service,
whether he is assigned work or not, would
be entitled to his salary from the date of
this judgment. It is also made clear that it
will be open to the respondents, if they
choose
to
initiate
fresh
disciplinary
proceedings, to place the petitioner under
suspension pending inquiry, and in that
event, the petitioner would be entitled to
subsistence allowance alone, which shall be
paid regularly and promptly.

27. There shall be no order as to costs.

28. Let a copy of this order be
communicated to the Chairman, U.P.
Power Corporation Limited, Lucknow by
the Registrar (Compliance)
----------
(2023) 11 ILRA 896
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.10.2023 &
12.10.2023

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Writ-A No. 36716 of 1998

Balram Yadav ...Petitioner
Versus
D.J., Maharajganj & Anr. ...Respondents

Counsel for the Petitioner:
Sri Mahendra Pratap, Akhileshwari Dubey,
Sri M.K. Dubey, Sri P.K. Upadhyay, Sri S.M.
Yadav, Sri V.K. Dubey

Counsel for the Respondents:
C.S.C., Ms. Pooja Agarwal, Sri Samir
Sharma

A. Service Law - Right to equality - UP
Regularization
of
Daily
Wages
Appointments on Group D Posts Rules,
2001- R. 4 - Regularization - Identical
11 All. Balram Yadav Vs. D.J., Maharajganj & Anr.
897
placed persons were regularized - Effect -
Held, petitioner's claim in the light of the
Rules of 2001 cannot be ignored, more so,
when identically placed persons, who
were also included in the list after serial
No. 29 onwards, have already been
regularized during the pendency of writ
petition - Petitioner is also entitled for
equal treatment. (Para 13)
B. Service Law - Termination - Charge of
negligence causing an incident of water
logging into the rest room of Additional
Judge leveled - Proof of role, how far bear
significance - Held, the petitioner was
terminated without assigning any role to
him in the alleged incident of water
logging
-
High
Court
found
the
termination order unsustainable. (Para 4,
10 and 15)
C. Pleading - Improvement of case
through affidavit - Permissibility - Can
the defence be taken in the counter
affidavit, which is not reflected in the
impugned order - Mohinder Singh Gill's
case relied upon - Held, the respondents
cannot improve their case on the basis of
affidavits only. (Para 12)
Writ petition allowed. (E-1)
List of Cases cited:
1. Vibhuti Shankar Pandey Vs St. of M. P. & ors.
; 2023 (3) SCC 639
2. Bhawani Prasad Sahu & ors. Vs St. of U.P. &
ors. ; 2023 (5) All LJ 248
3. Secretary, St. of Karn. & ors. Vs Umadevi &
ors. ; 2006 (4) SCC 1
4. Mohinder Singh Gill & ors. Vs Chief Election
Commissioner, New Delhi & ors. ; AIR 1978 SC
851

(Delivered by Hon'ble Kshitij Shailendra,
J.)

1. Heard Shri Pankaj Upadhyay along
with Shri Vipul Kumar Dubey, learned
counsel for the petitioner, Ms. Pooja
Aarwal,
learned
counsel
for
the
respondents and perused the record.

2. The petitioner was appointed as a
Class IV employee on Ad-hoc basis on
01.12.1999
in
District
Judgeship
of
Maharajganj. Reference to the select-cumappointment list of year 1991 has been
made. The said list shows that pursuant to
the written examination dated 20.01.1991
followed by interview dated 11.03.1991, 46
candidates were declared as successful and
were appointed in Ad-hoc capacity. The
name of the petitioner finds mention at
serial No. 35 of the said list with a remark
of back-ward class against his name.

3. It is contended that the petitioner
was issued a letter of appointment by the
District Judge concerned on 12.04.1991,
whereby he was appointed as Farrash on
Ad-hoc basis on a fixed pay of Rs. 780/-
per month w.e.f. 12.04.1991 with a recital
that
his
appointment,
being
purely
temporary in nature, is liable to be
terminated any time without notice. Further
case of the petitioner is that another order
was
issued
by
the
District
Judge,
Maharajganj
mentioning
that
the
appointment of various persons including
the petitioner would be treated as effective
w.e.f. 01.05.1991.

4. It is contended that after about four
years, the petitioner moved an application
before the Registrar General of this Court
on 28.03.1995 seeking regularization of his
services. However, while no order was
passed on the said application on the
Administrative side, in the meantime,
learned District Judge, Maharajganj, by an
order dated 10.07.1998 terminated the
services of the petitioners along with two
other persons, while referring to an incident
898 INDIAN LAW REPORTS ALLAHABAD SERIES
when water stood logged up into the rest
room of Additional District Judge for the
reason that Assistant Nazir, namely, Rajesh
Yadav being on leave, another Assistant
Nazir,
namely,
Kameshwar
Thakur
remained
negligent
and,
therefore,
Kameshwar Thakur was suspended. The
said order dated 10.07.1998 is under
challenge in the present writ petition along
with another order dated 04.08.1998,
whereby the petitioner was reappointed on
the same post with a clear recital that his
seniority
would
remain
intact.
The
subsequent order has been challenged to
the extent it is against the petitioner and it
is contended that the only thing which goes
against the petitioner in order dated
04.08.1998 is that he has been given
fresh/reappointment.

5. The present writ petition has been
filed challenging the aforesaid two orders
with a further prayer that services of the
petitioner be regularized.

6. Learned counsel for the petitioner
has placed reliance upon Uttar Pradesh
Regularization
of
Daily
Wages
Appointments on Group D Posts Rules,
2001 (herein-after referred to as "Rules of
2001") and while referring to Rule 4 of the
said Rules, it has been argued that a daily
wager directly appointed before 29.06.1991
and continuing in service on the date when
the Rules of 2001 came into force, would
be entitled for regularization his services.
The submission is that in 2001, the
petitioner was continuing in service at the
strength of the interim order dated
30.11.1998 passed in the present writ
petition.

7. Learned counsel for the petitioner
further submits that during the pendency of
the writ petition, two persons, namely,
Ravindra Nath Dubey and Matiram Yadav,
whose names were shown at serial Nos. 33
and 34 in the list of 1991, have been
regularized and, therefore, the petitioner is
being discriminated. Learned counsel for
the petitioner has also placed reliance upon
the judgements of Apex Court in the case
of Sheo Narain Nagar and others vs State
of U.P. and others, reported in 2018 (13)
SCC 432 and Rajnish Kumar Mishra and
others vs State of U.P. and others reported
in 2019 (17) SCC 648 and submits that the
Apex Court, under identical circumstances,
has granted relief to the concerned
appellants before the Apex Court after
dealing with the regularization Rules of
2001 and cut off date as well as working of
the
concerned
appellants
in
the
establishment.

8. Per contra, Ms. Pooja Agrawal,
learned counsel, by referring to the counter
affidavit, has argued that there were only
23 vacancies of Class IV in the District
Judgeship of Maharajganj and 5 additional
posts were created, making the vacancy as
29. It is further contended that the select list
relied upon by the petitioner discloses a
consolidated list, in which only 29 persons
were found to be appointed as against 29
vacant posts and the persons, whose names
were mentioned from serial No. 30
onwards, were put in the waiting list and
the petitioner being a candidate included in
the waiting list and beyond the sanctioned
strength, is not entitled either to continue in
service or for regularization. As regards the
case of Ravindra Nath Dubey and Matiram
Yadav, it has been argued that Ravindra
Nath
Dubey
was
given
appointment
pursuant to the order dated 17.07.2013
passed in Writ A No. 1428 of 2004 under
the peculiar facts and circumstances and,
therefore, no parity can be claimed. She
further
submits
that
the
learned
11 All. Balram Yadav Vs. D.J., Maharajganj & Anr.
899
Administrative Judge, Maharajganj, while
deciding the claim of Ravindra Nath Dubey
by order dated 19.12.2015, has taken note
of the situation that Ravindra Nath Dubey
participated in the fresh selection held in
the year 1992 and, therefore, the petitioner
cannot claim parity with him. As regards
Matiram Yadav, whose services have also
been regularized, it is contended that he
belonged to backward class and since he
was above in the order of merit and
seniority in comparison to the petitioner, he
was given appointment and, hence, the
petitioner being below in the select list,
cannot claim any relief. Ms. Pooja
Agarwal, learned counsel has relied upon
the following authorities in support of her
submissions:

(i) Vibhuti Shankar Pandey vs
State of Madhya Pradesh and others,
reported in 2023 (3) SCC 639

(ii) Bhawani Prasad Sahu and
others vs State of U.P. Through Principal
Secretary,P.W.D. Lucknow and others,
reported in 2023 (5) All LJ 248.

9. While placing reliance upon the
aforesaid authorities, it has been argued
that no appointment beyond the sanctioned
strength can be allowed and the petitioner
cannot get any relief in view of the
judgment of Supreme Court in the case of
Secretary, State of Karnataka and others
vs Umadevi and others, reported in 2006
(4) SCC 1.

10. Having heard the learned counsel
for the parties, I find that the order dated
10.07.1998 terminating the services of the
petitioner is confined to the alleged
negligence of one Assistant Nazir, namely,
Kameshwar Thakur, who was suspended
by the same order, whereas the petitioner
was terminated without assigning any role
to him in the alleged incident of water
logging. Insofar as second order impugned
dated 04.08.1998 is concerned, though the
petitioner
is
shown
to
have
been
reappointed, his seniority was kept intact
by the District Judge. By the time, the said
order was passed on 04.08.1998, no interim
order was passed in the present case.
Therefore, it cannot be said that the
petitioner's continuity in service is to be
considered only in pursuance or at the
strength of interim order dated 30.11.1998
passed in the present writ petition. The only
little break, if at all can be treated, is in
between 10.07.1998 and 04.08.1998, i.e. 24
days
and
once
the
District
Judge
maintained the seniority of the petitioner,
despite mentioning that he is offering
reappointment to him, for the purposes of
claim for regularization of the petitioner,
the said little break of 24 days would not
adversely affect the cliam subject to other
aspects of the matter.

11. Insofar as the argument of Ms.
Pooja Agarwal that the petitioner's name
was included in the waiting list in view of
29 vacancies available, I find that the said
argument has been developed by way of
counter affidavit only and there is no such
description either in any of the two orders
impugned or in the select list or even in the
appointment letter that the petitioner was
included in the waiting list. In any case, if
the argument of Ms. Pooja Agarwal is
accepted in relation to the sanctioned
strength, after perusing the order passed in
the case of Ravindra Nath Dubey, who was
also included in the waiting list as per the
respondents, I find that the learned District
Judge, Maharajganj in the year 2015, apart
from discussing other aspects of the matter
of Ravindra Nath Dubey, also took note of
the report of the District Judge that against
900 INDIAN LAW REPORTS ALLAHABAD SERIES
46 sanctioned Class IV posts in the District
Judgeship, Maharajganj, 40 persons were
working and 6 posts in the said cadre were
lying vacant. Learned Administrative Judge
in the order dated 19.12.2015 also observed
that Ravindra Nath Dubey had been
working in the Maharajganj Judgeship for
the last more than 22 years on a meagre
sum of Rs. 785/- in these hard economic
days and he is now 50 years of age having
two sons and one unmarried daughter, who
are studying and has also to bear the
liability of his brothers' widow. The order
dated 19.12.2015 was passed in the case of
Ravindra Nath Dubey keeping in view the
overall facts and circumstances and the
District Judge was directed to consider his
case and appoint him against one of six
vacant posts of Class IV on regular pay
scale.

12. The Court records that any
defence taken in the counter affidavit,
which otherwise is not reflected from
perusal of orders impugned and the
documents by which the petitioner was
appointed i.e. select list or letter of
appointment or even the letter of reappointment or another list directing taking
effect of the appointment w.e.f. 01.05.1991,
I find that the stand taken in the counter
affidavit regarding waiting list is hit by
judgement of Apex Court in the case of
Mohinder Singh Gill and others vs Chief
Election Commissioner, New Delhi and
others, reported in AIR 1978 SC 851 as the
respondents cannot improve their case on
the basis of affidavits only.

13. Even assuming without admitting
that the name of the petitioner was included
in the waiting list and a consolidated select
list prepared in 1991 though does not
mention this, I find that almost thirty two
years have passed when the petitioner was
appointed in the year 1991. Even if, interim
order granted by this Court in 1998, is
ignored for the purposes of considering the
claim for regularization of the services of
the petitioner, the Court does not find
anything, by which the petitioner's claim in
the light of the Rules of 2001 can be
ignored, moreso, when identically placed
persons, who were also included in the list
after serial No. 29 onwards, have already
been regularized during the pendency of
writ petition pursuant to the orders issued at
the level of District Judge as well as
learned Administrative Judge of this Court.
The sanctioned strength and vacancies may
vary from time to time, but considering the
report of the District Judge submitted
before the learned Administrative Judge in
the year 2015, whereby 46 sanctioned posts
and six vacancies were noted, in view of
the direction of learned Administrative
Judge to offer appointment to Ravindra
Nath Dubey against one of six vacant posts,
the Court finds from overall circumstances
that the petitioner is also entitled for equal
treatment.

14. The submission of Ms. Pooja
Agarwal regarding Matiram Yadav, though
is contrary to annexure No. 4 to the writ
petition, which is dated 01.05.1991, even if
it is accepted that Matiram Yadav was
senior to the petitioner as per initial select
list, since the petitioner also belongs to the
backward class and vacancies against the
sanctioned posts are still available and the
petitioner's case is found to be not inferior
to the claim of Ravindra Nath Dubey or
Matiram Yadav, the alleged seniority of
Matiram Yadav would not defeat the
petitioner's
claim
for
regularization
particularly, when this Court is not dealing
with the case of interse seniority in between
the persons described in the writ petition or
otherwise.
11 All. Sunil Kumar Jhunjhunwala & Ors. Vs. State of U.P. & Ors.
901

15. In view of the above discussion,
the orders terminating the services of the
petitioner are found to be unsustainable.

16. The writ petition succeeds and is,
accordingly, allowed.

17. The orders impugned dated
10.07.1998 and 04.08.1998 passed by District
Judge, Maharajganj are hereby quashed.

18. The petitioner is already continuing
in service and is getting a consolidated
amount.

19. A writ of Mandamus is issued to the
District Judge, Maharajganj to forthwith
regularize the services of the petitioner in
accordance
with
the
Rules
of
2001
maintaining his seniority as already directed
under the order impugned dated 04.08.1998
and quashing of the said order is to be
understood only to the extent it is against the
petitioner i.e. "reappointment".

20. The break of 24 days in service as
described herein-above shall not be treated as
a break and the same would not affect the
continuity in service of the petitioner for the
purposes of regularization.

21. The petitioner shall be entitled for
all consequential and financial benefits.

In Re:- Correction Application No.31
of 2023

1. Heard learned counsel for the
applicant.

2. This is an application seeking
correction in my order dated 03.10.2023.

3. The correction application is
allowed.

4. Date "01.12.1999" appearing in
second line of second paragraph of the order
is
corrected
and
replaced
by
date
"01.12.1990".

5. This order shall be treated as part
and parcel of previous order dated
03.10.2023.
----------
(2023) 11 ILRA 901
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.11.2023

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ-C No. 8736 of 2023

Sunil Kumar Jhunjhunwala & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Apoorva Tewari, Anil Kumar Tiwari, Vivek
Kumar

Counsel for the Respondents:
C.S.C, Raj Kumar Singh, Rajesh Kumar
Singh

Civil Law - Societies Registration Act,
1860 - Section 4(1-A) - Approval of
amended bye-laws by Deputy Registrar -
Remedy of Appeal - A plain reading of
Sub-sections (1), (1-A) and (2) of Section
4 of the Act, 1860 leads to the conclusion
that a person aggrieved by an order of the
competent authority made under Section
4
may
file
an
appeal
before
the
Commissioner of the Division. The appeal
provided under Sub-section (1-A) lies
against all orders passed under Section 4,
and not merely against an order passed
under Sub-section (1) of the said Section.
In
the
instant
case,
by
the
order
impugned, the Deputy Registrar approved
the amendments in the bye-laws of the