# Dinesh Kumar Pandey v. District Judje, Ballia

- **Citation:** (2009) 3 ILRA 934
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-10-07
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-kumar-pandey-v-district-judje-ballia-39043
- **Pages:** 7

## Headnote

Constitution of India Art 226-civil court
ministerial Establishment rules 1947Rule 9-Termination Order-appointment
of petitioner as stenographer-on adhoc
basis
without
advertisement-without
considering
the
availability
of
post
subsequent appointment on probation
basis-regular working for considerable
period- in garb of interim order - illegalheld
termination
order
requires
no
interference.

Held Para 18

The learned counsel for the petitioner
submitted that since he has continued
for almost 17 years pursuant to the
interim order passed by this Court,
therefore, it would be extremely harsh at
this fag end to tell him that his
continuance in service is bad and hence
this Court should permit him to continue.
I am afraid that such relief is also
impermissible in this case. This Court
would be failing in its constitutional
obligation
of
ensuring
that
the
fundamental rights are not infringed at
all when it comes before the Court that
the
fundamental
rights
have
been
infringed by the State authorities with
impunity. This Court is under the oath to
act and implement rule of law. It cannot
permit continuance of its breach any
more. This Court must straightway come
forward
for
observance
of
the
constitutional
provisions
and
in
particular fundamental rights instead of
acting
in
a
manner
which
would
encourage such infringement further.
Case law discussed:
2007 (2) ESC 987

## Text

934 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
14. In the result the writ petition
succeeds and is allowed with the
following directions:

1. The amount of pension and other
retiral benefits if not already paid to the
petitioner, shall be paid finally to
petitioner within three months.

2. On the amount of pension and other
retiral benefits already paid and would be
paid pursuant to the above direction, the
petitioner shall be entitled to interest at
the rate of 8% commencing from the date
after one month from the date of his
retirement till actual payment. This
amount shall also be determined by the
respondents and paid to the petitioner
within three months from the date of
production of copy of this order.

3. The petitioner shall also be entitled
to cost which is quantified to Rs.50,000/-.
(Rs. Fifty Thousand Only)
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED ALLAHABAD O7.10.2009

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Civil Misc. Writ Petition No.18612 of 1992.

Dinesh Kumar Pandey
...Appellant
Versus
District Judje, Ballia
...Opposite Party

Counsel for the Applicant:
Sri S.N.Srivastava
Sri Awdhesh Tiwari
Sri G.P.Tripathi
Sri Ram Gopal Tripathi

Counsel for the Opposite Party:
S.C.
Constitution of India Art 226-civil court
ministerial Establishment rules 1947Rule 9-Termination Order-appointment
of petitioner as stenographer-on adhoc
basis
without
advertisement-without
considering
the
availability
of
post
subsequent appointment on probation
basis-regular working for considerable
period- in garb of interim order - illegalheld
termination
order
requires
no
interference.

Held Para 18

The learned counsel for the petitioner
submitted that since he has continued
for almost 17 years pursuant to the
interim order passed by this Court,
therefore, it would be extremely harsh at
this fag end to tell him that his
continuance in service is bad and hence
this Court should permit him to continue.
I am afraid that such relief is also
impermissible in this case. This Court
would be failing in its constitutional
obligation
of
ensuring
that
the
fundamental rights are not infringed at
all when it comes before the Court that
the
fundamental
rights
have
been
infringed by the State authorities with
impunity. This Court is under the oath to
act and implement rule of law. It cannot
permit continuance of its breach any
more. This Court must straightway come
forward
for
observance
of
the
constitutional
provisions
and
in
particular fundamental rights instead of
acting
in
a
manner
which
would
encourage such infringement further.
Case law discussed:
2007 (2) ESC 987

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Ram Gupta Tripathi,
learned counsel for the petitioner. Despite
of the case having been taken in the
revised list, none appeared on behalf of
the respondent.
3 All] Dinesh Kumar Pandey V. District Judge, Ballia
935

2. The order dated 11.5.1992, passed
by the District Judge, Ballia (Annexure-4
to the writ petition) has given rise to the
present writ petition filed under Article
226 of the Constitution. The petitioner has
sought a writ of certiorari for quashing the
order dated 11.5.1992. He petitioner has
also
sought
a
writ
of
mandamus
commanding the respondents to allow the
petitioner to work with Sri Moti Lal, IV
Addl. Munsif Magistrate, Ballia where the
petitioner was working or to any other
person as District Judge considers proper
and not to cease the petitioner to work on
the basis of the impugned order.

3. The petitioner claims to have been
selected in a written test and interview
conducted by a selection committee
constituted by the respondent District
Judge, Ballia in 1990 and regularized with
effect from 3.12.1990. Prior to the above
selection the Government Order dated
4.8.1990 created 85 temporary posts of
Stenographers in the pay scale of Rs.
1200-2040 for Munsif Magistrates. It
appears that the High Court by letter
dated 6.9.1990 requested the Government
to create more number of posts since
number of Munsif Magistrates, Judicial
Magistrates, Railway Magistrates and
Metropolitan Magistrates was 228 besides
Addl. Chief Judicial Magistrates and Addl
Chief Metropolitan Magistrates, whose
list was provided to the Government. The
then District Judge on his own taking note
of the said Government Order dated
4.8.1990
proceeded
to
engage
Stenographers, appointed the petitioner
initially on ad hoc basis and attached him
with Sri Moti Lal, IV Addl. Munsif
Magistrate, Ballia. Thereafter he held a
selection as said above and made the
petitioner
regular
with
effect
from
3.12.1990. Vide impugned order dated
11.5.1992, the District Judge has directed
the petitioner to cease to work on the
ground that there is no order of High
Court
for
providing
facility
of
stenographer to Sri Moti Lal and a few
other Munsif Magistrates working in the
Ballia Judgeship. It is this order whereby
the petitioner has ceased to work which is
under challenge.

4. The petitioner has filed two
supplementary affidavits bringing on
record some further facts. Supplementary
affidavit dated 26.7.2006 contain two
documents, one is the order dated
3.12.1990 of the District Judge approving
list of certain candidates found successful
for appointment to the post of Hindi
Stenographer in Ballia Judgeship, which
included the name of the petitioner at Sl.
No. 6. Second is the order dated
22.1.1992 allowing increments to the
petitioner considering his service in
continuity from the date of ad hoc
appointment, i.e. 16.7.1990.

5. Another supplementary affidavit
III is dated 8.9.2009 which has been filed
in order to satisfy the query made by this
Court as to how and in what manner the
process of selection commenced, whether
the vacancies were advertised and other
relevant
facts.
The
petitioner
has
categorically stated in paragraph 6 of the
supplementary affidavit-III that he came
to know that a post of Stenographer is
vacant in the Judgeship, hence, moved an
application on 13.7.1990. Thereupon,
pursuant to the Government Order dated
4.8.1990 (though the said Government
Order was not in existence in July 1990,
the then District Judge appointed him for
two months on ad hoc basis as Hindi
Stenographer.
The
said
ad
hoc
appointment was extended from time to
936 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
time. On 16.7.1990, the District Judge
sent a letter to the District Employment
Officer, Ballia requisitioning names of ten
qualified persons to be appointed on the
post of Hindi Stenographers and in
pursuance to the said letter, District
Employment Officer, Ballia sent names of
ten persons. A written test was held on
16.9.1990
wherein
23
candidates
appeared including the petitioner. The
said 23 candidates included certain
persons who were already working on ad
hoc basis which included the petitioner, as
well as, ten candidates whose names were
recommended
by
the
District
Employment Officer and some others.
Pursuant to the written test, candidates
who were found successful were sought to
be
interviewed
on
1.12.1990
and,
thereafter the candidates who were
recommended by the selection committee
were approved by the District Judge by
his order dated 3.12.1990. Pursuant to the
said order, the services of the petitioner
stood
regularized
with
effect
from
16.7.1990, i.e. the date of his initial
appointment. He has also placed on
record a copy of the order dated
3.12.1990 passed by the District Judge,
Ballia whereby, pursuant to his selection,
he ceased to be an ad hoc employee and
was appointed temporarily to work as
Hindi Stenographer in the pay scale of
1200-2040 on a vacant post on probation
for three months along with other newly
selected candidates. By another order
dated 4.2.1990 passed by District Judge,
Ballia, the service books of the newly
selected Stenographers were directed to
be prepared. A copy of the Government
order dated 17.4.1995 has been filed
which converts 204 temporary post of
Stenographer for Munsif Magistrate in the
State of U.P., permanent.

6. Learned counsel for the petitioner
submits that he was appointed on regular
basis and having been selected and
appointed in accordance with rules, he
could not have been terminated by a
simple order of termination passed by the
District Judge Ballia impugned in this
writ petition and the said order is patently
illegal. He further submitted that at
present there are 33 sanctioned post of
Stenographer
in
Ballia
Judgeship
whereagainst only 28 persons are working
and 5 posts are still vacant, therefore,
there is no justification in terminating the
petitioner particularly when pursuant to
the interim order dated 29.5.1992 passed
by this Court, he is still continuing.

7. I have heard learned counsel for
the petitioner at length and perused the
record.

8. It is really unfortunate that here is
a case where an Officer holding a
responsible post of District Judge has
acted in such a disarrayed and whimsical
manner and even without caring as to
whether any sanctioned post was avaialbe
or not and whether the selection is being
made in accordance with rules or not. In
his own pick and choose manner, firstly
he made ad hoc appointments, continued
them and, thereafter, in a so called
selection,
made
appointments
on
probation claiming that appointments are
being made against vacant posts, though
sanctioned posts were not available. This
illegality continued till this matter was
checked and noticed by his successor in
office
in
1992,
and
noticing
the
discrepancies, he issued the order of
termination.

9. The record apparently shows
shocking state of affairs on the part of the
3 All] Dinesh Kumar Pandey V. District Judge, Ballia
937
then District Judge which has to be
condemned outright.

10.

Annexure
2
to
the
supplementary affidavit-III is a copy of
the Government Order dated 17.4.1995
which shows that Government Order
dated 8.12.1989 created 65 temporary
posts of Hindi Stenographer, Government
Order dated 4.8.1990 created 85 such
posts and Government Order dated
18.2.1991 created 54 posts on temporary
basis and that is how the total number of
posts of Stenographers came to 204. All
such posts were made permanent with
effect from 1.3.1995 by the Government
Order dated 17.4.1995.

11. The petitioner claims his
appointment against a vacant sanctioned
post pursuant to the Government Order
dated 4.8.1990. A copy of the aforesaid
Government Order is Annexure-2 to the
writ petition. A perusal thereof shows that
it was issued by the Joint Secretary, U.P.
Government and addressed to Registrar,
High
Court,
Allahabad.
While
communicating the decision of the
Government for creation of 85 temporary
posts of Stenographer in the pay scale of
1200-2040, it further provided that these
poses shall be allotted to only those
Courts where the Presiding Officers have
been posted and on such allotment,
special pay of Rs. 25/- admissible to
Munsarin
Reader
pursuant
to
the
Government Order dated 25.8.1976 shall
stand abolished. The Government Order
did not result in suo motu creation of
posts of Stenographers in all the existing
Courts of Munsif Magistrates etc. in
various Judgeships but as a consequence
of the said Government Order, first the
High Court was to allot sanctioned posts
of Stenographer to the concerned Courts
of Munsif Magistrate etc. in various
District Judgeships and only thereafter,
the process of appointment could have
been initiated by the concerned District
Judges. The Government Order dated
4.8.1992 resulted in creation of posts of
Stenographers in lump sum but since the
number of Munsif Magistrates etc. was
much larger in the State of U.P., the
Courts wherein those posts would stand
allocated
was
an
exercise
to
be
undertaken by the High Court. In absence
of such exercise by the High Court, no
District Judge at all, of his own, could
have take some posts out of the
Government Order in his District and
posted. That would be wholly without
jurisdiction since no District Judge had
such power. This is evident from
Annexure-3 to the writ petition which is a
letter dated 6.9.1990 sent by the High
Court to all the District Judges. A perusal
thereof shows that a list of 85 Addl. Chief
Judicial Magistrates/ Munsif Magistrates/
Judicial Magistrates was circulated on
6.2.1990 but since most of the officers
mentioned in the said list were promoted
as Civil Judge or working as Civil Judge
or Chief Judicial Magistrate, the High
Court informed that there is a necessity of
preparing a fresh list of 85 officers in
order of seniority since only 85 posts of
Stenographers
were
created
by
the
Government so that the aforesaid facility
may be provided to the concerned officers
in order of seniority. The above letter also
shows that the revised list sent by the
High Court contains the names of 442
Magistrates,
Judicial
Magistrates,
Railway
Magistrates,
Metropolitan
Magistrates and Addl. Chief Metropolitan
Magistrates.

12. The then District Judge, Ballia
without looking to this, on his own
938 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
proceeded
to
make
first
ad
hoc
appointment on just getting an application
received from the individual candidate
like the petitioner and, thereafter, adopted
a very strange method of selection in
order to camouflage the ad hoc appointees
as well as some more as regularly selected
candidates.

13. Admittedly, recruitment to the
ministerial posts in District Judgeship is
governed by Civil Courts Ministerial
Establishment Rules, 1947 (hereinafter
referred to as "1947 Rules") read with
U.P. Rules for Recruitment of Ministerial
Staff of the Subordinate Offices in Uttar
Pradesh, 1950 (hereinafter referred to as
"1950 Rules"). Rule 9 of 1947 Rules
obliges a District Judge to first determine
the vacancies likely to occur in the course
of year and Rule 10 provides that
application for recruitment shall be
invited
by
the
District
Judge
by
advertising the vacancies in the news
papers
circulated
in
the
locality
concerned. Rule 6 of 1950 Rules provides
for written test and oral test as well as
typing test. From the facts placed on
record by the petitioner, it is evident that
neither any vacancy was advertised in the
news paper as contemplated under Rule
10 nor there is anything to show that the
District Judge determined the vacancies
existing in the Judgeship where against
the
selection
was
to
be
made.
Appointment letter dated 3.12.1990 shows
that all 8 candidates said to have been
selected in the above selection were
appointed as Stenographer. It means that
at least 8 vacancies of stenographer on
that day were available. Besides, the so
called written test did not include written
test in various subjects as provided in
Rule 6 of 1950 Rules but it was only a
short hand and typing test as is evident
from Page 35 (N) of the supplementary
affidavit-III. Learned counsel for the
petitioner admitted that no written test in
the subjects like simple drafting in Hindi,
essay and precis writing in Hindi and
simple drafting and precis writing in
English besides oral test in general
knowledge, personality etc. was held but
only a short hand and typing test was held
on 16.10.1990. Evidently, the alleged
written test was also not held as per the
statutory rules.

14. There is another interesting
aspect of the matter. On the one hand, the
then District Judge issued appointment
orders of eight stenographers selected by
him and appointed them on probation,
but, later on, his successor District Judge,
on 28.6.1991 passed an order observing
therein that the eight candidates including
the petitioner, who were appointed as per
the select list dated 5.12.1990 and placed
on probation for a period of three months,
have satisfactorily worked, therefore, are
retained
in
service
and
be
given
appointment in future according to their
seniority against the post of Stenographer
as and when fall vacant. This order of the
then District Judge is on page 35(Q) of
the supplementary affidavit-III filed by
the petitioner. This evidently shows that
no sanctioned and vacant post of
Stenographer was available even on
28.6.1991, yet ignoring all canons of
service jurisprudence, the then District
Judge treated as if a person can be
appointed on probation though vacancy or
post is not available and can complete
probation without there being a post at all.
His strange order is like this:

"They are, therefore, ordered to be
retained in service and given appointment
3 All] Dinesh Kumar Pandey V. District Judge, Ballia
939
in future according to their seniority on
the post of as and when they fall vacant."

15. It is really pitiable that highest
Judicial Officer in Subordinate Court i.e.
the District Judges passed such type of
order ignoring all known principles of
service law. He actually acted in a wholly
illegal manner. The officer had caused
certain advantages conferred upto the
persons who have come by simple pick
and choose and not after a valid selection
wherein the public at large had an
opportunity of consideration for selection
and appointment as guaranteed under
Article 16 of the Constitution. The earlier
illegality is bolted down by successor in
office, who passed the impugned order
when
found
that
pursuant
to
the
Government Order dated 4.8.1990, High
Court had not allocated the post of Hindi
Stenographers
to
three
Munsif
Magistrates including Sri Moti Lal, in
whose Court the petitioner claims to have
been attached to work.

16. It is also evident that an attempt
has been made in this case to give colour
of a valid selection and appointment so as
to confer better rights upon the petitioner
and probably for this reason when the writ
petition was entertained by this Court, an
ex parte interim order was passed. Now
on deeper consideration of the matter and
after looking to all the orders which the
petitioner has placed on record, it is
evident that there was no selection at all
in the eyes of law i.e. in accordance with
the rules and whatever was done was only
a colourable exercise so as to confer
undue
benefit
upon
certain
chosen
candidates and that is how the petitioner
is also a beneficiary of such illegal acts.

17. These things have happened
almost 18 to 19 years back and today, this
Court can only express its anguish and
displeasure knowing it well that on
administrative
side,
the
officers
responsible for such illegal acts are
immune from any action. It is really
unfortunate what this Court has witnessed
in this case. The highest judicial officers
in
the
subordinate
judiciary
have
proceeded in such a whimsical and
arbitrary manner and their illegal action
would have justified a stern disciplinary
action against them but due to passage of
long time, now it is not possible.

18. The learned counsel for the
petitioner submitted that since he has
continued for almost 17 years pursuant to
the interim order passed by this Court,
therefore, it would be extremely harsh at
this fag end to tell him that his
continuance in service is bad and hence
this Court should permit him to continue.
I am afraid that such relief is also
impermissible in this case. This Court
would be failing in its constitutional
obligation
of
ensuring
that
the
fundamental rights are not infringed at all
when it comes before the Court that the
fundamental rights have been infringed by
the State authorities with impunity. This
Court is under the oath to act and
implement rule of law. It cannot permit
continuance of its breach any more. This
Court must straightway come forward for
observance
of
the
constitutional
provisions and in particular fundamental
rights instead of acting in a manner which
would
encourage
such
infringement
further.

19. So far as the continuance of the
petitioner under the interim order is
concerned, it is well settled that no benefit
940 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
can be claimed by a person based on an
interim order. This aspect has been
considered by a Division Bench of this
Court in Smt. Vijay Rani Vs. Regional
Inspectress of Girls Schools, Region-I,
Meerut & others 2007 (2) ESC 987,
wherein this Court having considered
several authorities of the Apex Court and
this Court, has observed as under :

"If a person has enjoyed certain
benefits under the interim order, he/she
would not be allowed to claim any further
benefit due to change in law pursuant to
enjoyment of certain benefit under an
interim order of the Court. A benefit
under the interim order is tentative and
subject to final decision in the matter and
cannot go beyond the final decision."

20. In view of the above discussion
and considering the exposition of law as
well as the statutory provisions applicable
to this case, I do not find any illegality in
the order impugned in this writ petition.
The writ petition is devoid of merit.
Dismissed.

21. Interim order, if any, stands
vacated.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.10 2009

BEFORE
THE HON'BLE ARUN TANDON, J.

Second Appeal No.1727 of 1976

Rahul Sondhi

...Applicant
Versus
Amritsar Sugar Mills Co.Ltd. and others

 ...Opposite parties

Counsel for the Appellant:
Sri N.C. Rajvanshi
Sri P.C. Shukla

Counsel for the Opposite Parties:
Sri H.S. Nigam

Code of Civil Procedure- Section 100-
Second appeal- suit for return of gun
along with Cost- DBBL gun auctioned
after ceasure by order passed by session
judge
under
section
458
Cr.P.C.-
remained
unchallenged
can
not
be
questioned in civil suit nor the civil court
has jurisdiction judgment and so for it
relates to returned is decree concern-set
a side by but direction for payment of
value of gun as well as cost maintained.

Held: Para 9

From the fact as they exist on record it is
apparently clear that after the gun was
seized and orders for sale of the same
were issued. Such orders for sale of the
property
seized
during
criminal
proceedings are referable to Section 458
Cr. P.C. Section 458 (2) provides for an
Appeal
against
an
order
of
the
Magistrate directing sale of the property.
It is apparent from the records of this
Court on 25.08.1971 when proceedings
under Section 458 Cr.P.C. For sale of the
gun
had
already
taken
place
on
22.06.1970. It is therefore, obligatory
upon the plaintiff company to have got
the order of sale passed under Section
458 Cr.P.C. Set aside and then only any
direction for the return of the gun could
be given effect to. The plaintiff for
reasons best known to it has not brought
to the knowledge of the Court in his
Criminal Misc. Application resulting in
the order dated 25.08.1971, the fact um
of the order for sale passed under
Section 458 Cr. P.C. And the actual sale
which had taken place on 22.06.1970 i.e.
much prior to the date of the order of the
High Court dated 25.08.1971 setting
aside the forfeiture.