# Brij Kumar and Ors v. State of U.P. and Ors

- **Citation:** (2013) 2 ILRA 806
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-11-26
- **Case number:** Writ Petition No. 3052(S/S) of 2004
- **Bench:** Shabihul Hasnain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brij-kumar-and-ors-v-state-of-u-p-and-ors-42607
- **Pages:** 8

## Headnote

Constitution of India, Art. 226- Cancellation
of appointment-Petitioners working on daily
wages/contractual basis-on class 4th postas per govt. policy after facing selection
process-instead
of
regular-given
appointment on fresh contractual basisconsidering ban on regular appointmentwhen ban lifted-instead of giving regular
status-selection itself canceled-no allegation
of malpractices of irregularities in selectionappointing
raw
handed
persons-outing
experienced hand-held shocking-no reason
to divest them at this stage-petition allowed.

Held: Para-22
There is no case of malafide or any
bungling in the selection process and
there is no allegation of any corruption,
bribe or unfair selection. No candidate has
come forward with any case of malpractice
being adopted in the selection. The State
itself allowed these persons to continue for
more than three years. Naturally, the
experience of these people with the
passage of time must have enhanced. To
throw them out and bring in raw hand in
2 All] Brij Kumar and Ors. Vs. State of U.P. and Ors.
807
the institution, which is very sensitive and
needs well oiled machinery to cope with the
process of electioneering, will not be
justified. It has been informed that the
petitioners are working till date. Initially, a
stay order was passed in favour of the
petitioners. I find no good reason to deviate
from that finding. The stay order was never
vacated by any other Court.

## Text

806 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
who was responsible for the trade and sale
of spurious countrymade liquor in the area
which resulted in the death of 11 persons.

9. In the counter affidavit filed by
the learned Standing Counsel the specific
averments made by the petitioner with
regard to Udai Pratap Verma, Anand
Singh, Ashish Singh and Shyam Bihari
Constable have not been denied and in
fact the averments with regard to Shaym
Bihari Constable made in para 20 of the
writ petition have been admitted in para
13 of the counter affidavit.

10. Thus, on a consideration of the
report of the Inquiry Officer and the order
of the disciplinary authority and the other
documents on record, we are of the
considered opinion that the petitioner has
been made a scapegoat and punished by
the
impugned
penalty
order
dated
26.11.2012 even though (as noted above)
the Inquiry Report at page 63 of the writ
petition records all the findings in favour
of the petitioner. We thus find that there is
no evidence on record to point the finger
of accusation at the petitioner and that the
punishment has been awarded to the
petitioner only on the ground of suspicion
because 'somewhere some mistakes have
occurred.' Where the mistakes have
occurred and who is responsible for the
same has not been pin pointed.

11. For reasons stated above, the
impugned order dated 26.11.2012 cannot
survive and is accordingly quashed.

12. Writ petition is allowed. There
shall be no order as to cost.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.06.2013

BEFORE
THE HON'BLE SHABIHUL HASNAIN, J.

Writ Petition No. 3052(S/S) of 2004
alongwith
W.P. No.3244 (S/S) of 2004,
W.P.No.3246 (S/S) of 2004,
W.P. No.3261 (S/S) of 2004, W.P.
No.3271 (S/S) of 2004and
W.P.No.3149 (S/S) of 2004.

Brij Kumar and Ors.
 ...Petitioners
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioners:
Sri U.N Mishra , Sri Kshemendra Shukla
and Sri Sameer Kalia

Counsel for the Respondents:
C.S.C. , Sri Ms.Aprajita Bansal
Sri Raghvendra Singh , Sri Sanjay Saran
and Sri Ujjawal Singh

Constitution of India, Art. 226- Cancellation
of appointment-Petitioners working on daily
wages/contractual basis-on class 4th postas per govt. policy after facing selection
process-instead
of
regular-given
appointment on fresh contractual basisconsidering ban on regular appointmentwhen ban lifted-instead of giving regular
status-selection itself canceled-no allegation
of malpractices of irregularities in selectionappointing
raw
handed
persons-outing
experienced hand-held shocking-no reason
to divest them at this stage-petition allowed.

Held: Para-22
There is no case of malafide or any
bungling in the selection process and
there is no allegation of any corruption,
bribe or unfair selection. No candidate has
come forward with any case of malpractice
being adopted in the selection. The State
itself allowed these persons to continue for
more than three years. Naturally, the
experience of these people with the
passage of time must have enhanced. To
throw them out and bring in raw hand in
2 All] Brij Kumar and Ors. Vs. State of U.P. and Ors.
807
the institution, which is very sensitive and
needs well oiled machinery to cope with the
process of electioneering, will not be
justified. It has been informed that the
petitioners are working till date. Initially, a
stay order was passed in favour of the
petitioners. I find no good reason to deviate
from that finding. The stay order was never
vacated by any other Court.

(Delivered by Hon'ble Shabihul Hasnain, J.)

1. Heard Sri Upendra Nath Mishra,
learned counsel for the petitioners and
Ms. Aprajita Bansal for opposite party
No.s 2, 3 and 4 while learned Standing
counsel appears for opposite party No.1.

2. The petitioners have challenged the
impugned order dated 26.5.2004 passed by
the
Secretary,
U.P.
State
Election
Commission, Lucknow as are collectively
contained in annexure No.1 to the writ
petition. There are number of petitioners and
each has been served with a separate order
whereby his services have been dispensed
with. In fact, the orders for cancellation of
appointment orders of the petitioners dated
23.7.2001 has been passed by the appointing
authority himself. Now the petitioners have
prayed that they be allowed to continue to
work on class IV posts in the office of the
State Election Commission, U.P. Lucknow
as before and to pay them salary and other
consequential benefits.

3. Certain facts will be necessary for
adjudication of the matter hence narration
of facts is as follows:

4. The petitioners were engaged on
class
IV
posts
on
daily
wage
basis/consolidated pay for working in the
office of State Election Commission, U.P.
between 1994 to 2001. The Commissioner
of the State Election Commission issued a
circular dated 23.3.1996 providing therein
that existing class IV posts shall be filled
up from amongst such employees who
have
earlier
worked
as
daily
wagers/contract
basis
in
the
Commissioner's office during previous
elections
of
U.P.
Legislative
Assembly/Panchayati Raj Elections/Local
Bodies. Copy of the circular No.962/RaNi-Aa Anubhag-I, issued by Sri R. D.
Sonkar, Rajya Nirvachan Ayukta, U.P.
Copy of the aforesaid circular has been
annexed by the petitioners as annexure
No.4 to the writ petition.

5. A ban was imposed on fresh
recruitment by the State Government. No
appointment on regular selection of class
IV
post
was
made.
However,
on
30.1.2001 a notification was issued laying
down procedure for recruitment of Group
'D' posts in Commission. By this
notification
the
Secretary
of
the
Commission was made the appointing
authority and the selection on Class IV
posts were to be made a recommendation
of duly constituted selection committee.
Consequent
to
this
notification
the
appointing authority issued a circular on
15.6.2001 inviting applications from the
persons who had working experience on
class IV posts in the Commission.
However, persons were to be appointed
on contract basis instead of regular basis
in view of existing ban on regular
appointment. Since the petitioners were
having
working
experience
in
the
Commission they applied for appointment
on Group 'D' posts before the appointing
authority. On 30.6.2001 the appointing
authority issued another circular whereby
two selection committees were constituted
for recruitment between 1.7.2001 to
4.7.2001. The petitioners appeared for
interview before the selection committee
and they were selected by the committee.
808 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
On 23.7.2001 the appointment orders
were issued by the appointing authority.
The appointment orders were issued by
the then respondent No.4 in favour of the
petitioners. In the appointment order the
appointing authority instead of appointing
the petitioners on regular basis has
appointed them on consolidated pay on
contract basis in view of prevailing ban
on fresh recruitment.

6. The petitioners submit that for all
practicable
purposes
the
appointing
authority and the Commission have already
treated the petitioners as regular employees
but did not afford other service benefits like
leave benefits, pension etc. as is admissible
to regular employees. On 16.7.2002 the
ban/restriction order dated 3.11.1997 was
diluted by the State Government when it
was lifted for filling up the reserved backlog
vacancies. On 28.8.2002 the petitioners
submitted representations praying to issue
regular appointments at least in favour of
those petitioners who belong to reserved
categories in view of the relaxation order
dated 16.7.2002. In July, 2003 the State
Government further lifted the said ban on
fresh recruitment, as a result of which
number of departments started making
regular selection on the existing Group D
vacancies. On 15.1.2004 the ban on fresh
recruitment was finally lifted by the State
Government. On 3.2.2004 the petitioners
submitted a detailed representation to the
appointing authority for issuance of regular
appointment order in their favour. One more
representation was filed on 16.4.2004 to the
Deputy Commissioner of State Election
Commission, U.P., Lucknow. On 26.5.2004
the
impugned
orders
cancelling
the
appointment orders of the petitioners dated
23.7.2001 was issued which is under
challenge before this Court.

7. The main argument of the
petitioners is to the effect that no show
cause notice or opportunity of hearing
was given to the petitioners by respondent
No.4 prior to issuance of the impugned
cancellation orders of appointment dated
23.7.2001, which were issued by the
Commission after carrying out regular
selection.
The
impugned
order
of
cancellation suffers from the vice of nonapplication of mind and arbitrariness. The
same violates the principles of natural
justice as well as the provisions of Article
14 and 16 of the Constitution of India.

8. It has been further argued that
rights of regular appointment created in
favour of petitioners vide appointment
orders dated 23.7.2001 could not have
been taken away by respondent No.4
without issuing any show cause notice or
without
giving
any
opportunity
of
hearing. The petitioners were divested of
the vested rights for regular appointment
which had already accrued by issuance of
appoint order dated 23.7.2001 and the
impugned order can not, therefore, be
sustained in the eyes of law. It has also
been
stressed
that
cancellation
of
appointment after several years on the
allegations of procedural mistake or
irregularities is not permissible, especially
when no concealment of fact or fraud was
committed by the candidates.

9. The petitioners have further
submitted
that
the
procedure
for
appointment was specifically laid down
by the State Election Commission through
a gazette notification dated 30.1.2001 and
the said procedure was held valid by the
Secretary, State Election Commission i.e.
appointing authority by issuing a circular
dated 15.6.2001 and 30.6.2001 and also
by holding interview of the candidates
2 All] Brij Kumar and Ors. Vs. State of U.P. and Ors.
809
including the petitioners by the selection
committee.

10. The appointment orders have
been issued in favour of the petitioners by
the appointing authority himself i.e.
Secretary, State Election Commission and
it was specifically mentioned that the said
appointments were made on the basis of
selections held by the Commission
through a process of interview which was
required as per gazette notification dated
30.1.2001. The selection of petitioners
were
held
by
the
State
Election
Commission
practically
for
regular
appointment against substantive vacancies
but merely because of imposition of
government ban on fresh recruitment,
which was prevailing at that time, the said
appointment of the petitioners was made
on consolidated salary instead of regular
pay. Petitioners have argued that in view
of aforesaid fact, it was absolutely
unjustified on the part of the respondent
No.4 to have suddenly issued an order of
cancellation
of
appointment
of
the
petitioners on 26.5.2004 i.e. after three
years of working of the petitioners and
also after the ban on fresh recruitment
was finally lifted by the government vide
notification dated 15.1.2004 instead of
adhering to the promise/assurance of
regular
appointment
orders
to
the
petitioners, which was mentioned in the
order dated 23.7.2001.

11. In the instant case, the
petitioners' appointment were made on
23.7.2001 and they continued to work as
such, till passing of impugned order and
are continuing even till date. The
impugned cancellation order was passed
in May, 2004 i.e. after three years and it is
surprising to note that in January, 2004
the ban on fresh recruitment was finally
lifted by the State Government, where
after it had become incumbent on the part
of respondent No.4 to have issued regular
appointment orders in favour of the
petitioners as per the terms and conditions
of the orders of appointment of the
petitioners. Respondent No.4 could not
have cancelled the said appointment of
the petitioners in May, 2004 without any
valid and cogent reason.

12. Counter affidavit has been filed
on behalf of opposite party Nos. 2 to 4. It
has been submitted that appointment of
the petitioners on contract was made
despite complete ban on the appointments
imposed by the State Government through
government order dated 3.11.1997. The
State Government had made Group -D
Employees Service Rules, 1985 by which
any appointment to the post of Group-D
has to be made according to the
provisions of this rule. However, the State
Election
Commission
also
made
provisions
for
the
procedure
of
recruitment on the post under Group-D
for its office and district offices, vide its
Executive Order dated 30.1.2001 as no
service rules were framed for recruitment
to Group-D under the State Election
Commission and its district offices. The
said provisions show that recruitment for
any vacancy which has to be filled up,
would be made after notifying the
vacancies to the Employment Exchange
Office and the persons may only apply for
the vacancy which has been notified to
Employment Exchange after his name has
been registered in Employment Exchange.
The said procedure in the instant case of
the petitioners, was not followed. It has
further been submitted that the appointing
authority
ought
to
have
published/advertised the said vacancies on
the notice board and in any local news
810 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
papers. This was also not done by the
appointing authority.

13. It has been further submitted in
the counter affidavit that clause 3 of the
procedure for recruitment as given in
Executive Order lays down the procedure
for the constitution of the selection
committee, in the instant case of the
petitioners the said Rule was not
followed, as prescribed. The appointing
authority had constituted two selection
committees,
which
under
relevant
provisions was not permissible. In the
instant case, the appointing authority was
not
present
in
both
the
selection
committees but was present in only one
selection
committee
and
hence
the
constitution of the selection committee
was not done as prescribed and was not
legal. Therefore, the selection made by
irregular selection committee is void
abinitio. The selection which was made is
also bad in the eyes of law as the relevant
reservation rules were also not followed.
The quota of physically handicapped, exservicemen and dependents of freedom
fighter was not given/filled up.

14. According to the opposite
parties, the appointment of the petitioners
was made on contractual basis and they
were
given
appointments
on
a
consolidated pay of Rs.3000/- per month.
In the appointment orders which were
issued to the petitioners, the tenure of the
contract, which is against public policy
and is bad in the eyes of law. It is a well
settled principle of law that no person
under the contract can claim a right to
enforce the contract for indefinite period,
even if tenure of contract has not been
given. A contract of service without any
specified tenure is simply terminable at
will.
It
is
well
settled
that
any
appointment made dehors the rules is void
and for terminating such appointments
observance of natural justice is not
obligatory.

15. I have heard counsel for both the
parties
and
considered
the
rival
arguments.

16. The opposite parties have
stressed a lot on the issue of ban imposed
by the State Government vide its order
dated 30.11.1997. It has not been
successfully argued whether the ban
issued by the State Government will be
affecting autonomous bodies like the
Election Commission, which have been
given maximum independence by the
Constitution of India. It is but natural that
the agency which is vested with the
powers of conducting fair and free
elections in the State should have
independent
powers
to
make
arrangements for such an election. The
Court is not convinced that the State
Government can issue a blanket ban on all
appointments
including
the
Election
Commission
which
will
make
it
handicapped in performance of its duties.
Elections in India after independence
have to be held at various levels. Initially,
elections
of
Parliament
and
State
Legislatures are held once in five years.
Lateron,
with
the
development
of
democracy, Election Commission is being
called upon to perform the duties
intermittently.
Elections
of
other
institutions apart from Parliament and
State Legislatures are being bestowed
upon the Election Commission. It is
understandable that earlier temporary staff
was recruited at the time of elections and
the force was disbanded after its job was
over but subsequently, the need for
permanent staff arose with the increase of
working in the Election Commission.
2 All] Brij Kumar and Ors. Vs. State of U.P. and Ors.
811

17. It is an irony that the tenure of
the
governments
have
increasingly
become unstable leading to the need of
stability in the Election Commission. A
fully equipped and well oiled machinery
ever-ready and geared up to hold elections
anywhere any time is the need of the hour
for an Election Commission. In the
present case, the Secretary of the Election
Commission, who has been vested with
the power of appointment of Class IV
posts, has felt the need of having a stable
team of regular staff, which can be
entrusted with various activities involved
in the process of electioneering. For this
purpose, in his own wisdom, the Secretary
of the Election Commission thought it
proper that experienced hands may be
regrouped and their appointments may be
safeguarded so that their interests and
loyalty towards the Election Commission
may be guaranteed. The Secretary of the
State Election Commission has not
appointed any rank outsider through any
back door entry. The office order dated
23.7.2001 issued by the Secretary is very
clear. Only those persons have been
invited for regular appointments who
have already worked in the department
and have experience of elections of
Panchayat and local bodies. Since the
purpose of appointment was directly
connected to the experience of the
employee hence the general advertisement
to a common man was not issued.
Reference to the employment exchange
would have been antithetical to the very
idea of garnishing a team of experienced
employees. Therefore, applications were
invited only from those employees, who
had already worked with the department
from time to time. That intention and
action of the Secretary of State Election
Commission appears to be justified and
there is no violation of Article-14 or 16 of
the Constitution of India. Reasonable
classification on the basis of experience
will be wholly permissible in the
circumstances of the case. If sufficient
number of experienced persons are
available and willing to offer their
services, it will be violative of principals
of rule of law by equating the equals with
the unequals.

18. A ground has been taken that
two selection committees were made for
selection in the instant case.

19. Stress has been laid on the fact
that in one selection committee, the
Secretary himself was the Chairman while
in other committees some other members
were included. It is a strange argument
wherein it has been insisted that the
Chairman should be member of every
Board. The selection committee was
appropriately constituted by the Secretary,
who was the appointing authority himself.
It is but natural that if there are a large
number of candidates, the Chairman of
the selection committee can not be
expected to examine large number of
candidates personally. Even in Union
Public Service Commission and the State
Public Service Commissions, different
boards are constituted for interviews. In
written examinations all the copies are not
evaluated by one single person. Different
bunch of copies are sent to different
examiners. Different groups of applicants
are interviewed by different selection
committees/boards. This is compulsion of
the process; a necessity which can not be
done away with. If the law provides for
"a" selection committee, it does not mean
that there has to be necessarily one single
committee. It is natural that the Chairman
will be member of one such committee
and
he
will
constitute
equivalent
812 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
committees if there are large number of
people, which will depend on the
exigency of the situation. The number of
selection committees/panel/boards will
depend on the strength or the number of
candidates. If the candidates are far and
few, of course, one selection committee
will be sufficient but in case the number
of candidates is large, constitution of the
second or the third committee/panel/board
will not vitiate the process. In the present
case, it can not be said that that the
selection committees were irregularly
constituted. Both the selection committees
were constituted by the Secretary of the
Commission and the validity of both can
be upheld. The argument of counsel for
opposite parties will lead to ridiculous
situation wherein candidates selected by
the panel in which the Secretary himself
was present will be valid and the
candidates selected by the other panel or
board will be invalid because as per their
own argument the Secretary was available
in one of the committees personally. The
argument of the opposite parties is totally
unacceptable.

20. Another argument raised by the
opposite parties is to the effect that no
tenure was mentioned in the contract. The
Court feels that this argument is also
misconceived. An agreement can not
become bad only because specific date
has not been mentioned as the date of
expiry of the contract. In case, the
contract is terminable in the event of a
particular incident likely to happen in
future, it can not be said that the
agreement was eternal. The agreement
clearly mentions that it will come to an
end as soon as the ban is lifted. It has
been made determinable on the happening
of a certain event. The term of the
contract has thus become determinable. If
we see this contract in the background of
whole
situation
we
come
to
the
conclusion that the Commission wanted
to recruit experienced hands and since it
felt obligated to respect the ban imposed
by the State Government, it developed a
methodology and adopted a procedure
which would give the desired result,
which may have nexus to the purpose of
selection. Hence, a valid contract was
entered into. A reasonable amount was
fixed which would not exceed the pay
scale of class IV employees and would
ultimately secure regular appointment to
the
experienced
hands.
Advertising
through
employment
exchange
and
inviting applications from fresh hands to
compete with the experienced one would
have defeated the purpose of Election
Commission.

21. Even otherwise, in a democratic
set up, government should not easily be
allowed to interfere with the working and
independence
of
the
Election
Commission. There is no case of
unsuitability. A selection committee was
held and recruitment was made of
competent persons only. It is not the case
of the opposite parties that each and every
person
who
was
working
in
the
Commission has been absorbed en masse.
It is not a case of absorption of all the
temporary employees. It was a contract
selection but with the total preference to
the working experience of handling
various elections. Since there were
sufficient
number
of
experienced
candidates, it would have been totally
unwise to have flooded the selection
committee with thousands of applications
moved by totally inexperienced persons.

22. There is no case of malafide or
any bungling in the selection process and
there is no allegation of any corruption,
2 All] Mukund Ram Mishra Vs. State of U.P. and Ors.
813
bribe or unfair selection. No candidate has
come
forward
with
any
case
of
malpractice
being
adopted
in
the
selection. The State itself allowed these
persons to continue for more than three
years. Naturally, the experience of these
people with the passage of time must have
enhanced. To throw them out and bring in
raw hand in the institution, which is very
sensitive and needs well oiled machinery
to cope with the process of electioneering,
will not be justified. It has been informed
that the petitioners are working till date.
Initially, a stay order was passed in favour
of the petitioners. I find no good reason to
deviate from that finding. The stay order
was never vacated by any other Court.

23. Accordingly, the impugned
orders of cancellation of appointment
individually issued against the petitioners
and collectively annexed as annexure
No.1 to the writ petition, is quashed.
Respondent No.4 is directed to issue
necessary
orders
for
treating
the
petitioners' services as regular service in
pursuance of the direct selection held in
July, 2001 and in continuation of the
petitioners' appointment orders dated
23.7.2001. All consequential benefits of
regular appointment of Class IV posts
may also be conferred on the petitioners.

24. The petition is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.06.2013

BEFORE
THE HON'BLE ANIL KUMAR, J.

Service Single No.3592 of 2013

Mukund Ram Mishra

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

Counsel for the Petitioner:
Sri Bhupal Singh Rathore

Counsel for the Respondents:
C.S.C., Sri Rajiv Singh Chauhan

U.P. Basic Education (Teachers) Service
Rules-1981-Rule 29- Retirement of Basic
Education teacher-date of birth of petitioner
is
01.07.1951-accordingly
retired
on
30.06.14-no question of the benefit of
academic session-petitioner dismissed.

Held: Para-13
Keeping in view the abovesaid facts, the
position of law as well as the fact of the
present case that the date of birth of the
petitioner is 01.07.1951 as well as Rule 29
of the Rules, I do not find any illegality or
infirmity in the impugned retirement notice
dated 13.03.2013 (Annexure No. 1) passed
by
O.P.No.
3/Basic
Shiksha
Adhikari,
Sitapur by which the petitioner is sought to
be retired from service after attaining the
age of superannuation on 30.06.2013.

Case Law discussed:
1987 UPLBEC 566; 1986(4)SCC 59; 2008 (2)
SCC 639; 1993(2) UPLBEC 1128; [1989 Supp.
2 SCC 486]; 1986 (4) SCC 59; AIR 1986 SC
1948; 2010 (28) LCD 1730.

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

1. Heard Sri Bhupal Singh Rathore,
learned counsel for petitioner, Sri A.N.
Trivedi,
learned
Additional
Chief
Standing Counsel and Sri Rajiv Singh
Chauhan on behalf of respondents and
perused the record.

2. By means of the present writ
petition, the petitioner has challenged the
impugned
retirement
notice
dated
13.03.2013 (Annexure No. 1) passed by
District Basic Education Officer, Sitapur
by which the petitioner is sought to be