# Dr. Narendra Singh Sengar & Ors v. State of U.P. & Ors

- **Citation:** (2020) 12 ILRA 679
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-09
- **Case number:** Service Single No. 14731 of 2020
- **Bench:** Chandra Dhari Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-narendra-singh-sengar-ors-v-state-of-u-p-ors-45495
- **Pages:** 10

## Headnote

A. Service Law - Cancellation of contractual
appointment - Inquiry - The State cannot
take away employment of the petitioners
who are not responsible for any irregularities
in the appointment without proper inquiry of
each appointment individually or appraisal of
performance of every employee individually.
Not approval of any Government Order by Cabinet,
cannot said to be a wrong committed by the
employee and therefore, the petitioners cannot
suffer
for
any
irregularities
committed
by
Government authorities. (Para 27, 29, 30)

In the present case, services of all the petitioners
have been cancelled and a decision for no further
renewal
of
any
contractual
employee
in
Homeopathic Colleges has been taken. It is clear
law that eligibility of any candidate is to be
reckoned not from his or her selection but in terms
of rules or advertisement for the respective post. It
is also settled law that authority publishing the
advertisement/notification or any GO represents to
the members of the public that it is bound by such
representation. Any complaint regarding an
appointment should be examined and the decision
be taken individually and not by a general order.
The appointment of the petitioners was made after
adopting the procedure prescribed in the statute
as well as the advertisement dated 15.12.2017
and if the appointment is cancelled by a general
order, without appointing teachers on regular basis
by UPPSC, then the students who are studying in
the said Homeopathic Colleges may also suffer
irreparably. (Para 29)

B. The contractual employees can only be
replaced by regularly selected persons - It
680 INDIAN LAW REPORTS ALLAHABAD SERIES
is settled law that one set of contractual
employee should not be replaced by another set
of contractual employees unless it is found by
the authorities that the persons working on
contractual basis are not working satisfactory.
(Para 28)

C. Legitimate Expectation - One amongst
several tools incorporated by the Court to
review administrative action. A person may have
a reasonable or legitimate expectation of being
treated in a certain way by the administrative
authorities owing to some consistent practice in
the past or an express promise made by the
concerned authority.

There is also a legitimate expectation of the
petitioners who have been appointed on
contractual basis in different colleges on their
respective posts after following due process.
(Para 30, 31)

Writ Petitions allowed. (E-4)

Precedent followed:

## Text

12 All. Dr. Narendra Singh Sengar & Ors. Vs. State of U.P. & Ors.
679
the first time in the writ petition, and the
question whether the Enquiry Officer had
fixed any date, time and place for
conducting the enquiry is essentially a
question of fact, this issue can very well be
raised by the petitioner in appeal, which
can be considered by the appellate
authority under Rule12 of Rules, 1999 as it
is empowered to consider all factual aspect
of the matter.

27. It is further relevant to mention
that Appellate Authority is vested with the
powers to confirm, modify or reverse the
order passed by the disciplinary authority;
or it may direct that further inquiry be held
in the case; or it may reduce or enhance the
penalty imposed by the order; or it may
make such other order in the case as it may
deem fit.

28. Thus, it is apparent from the reading
of Rules 11, 12 & 13 of Rules, 1999 that it
provides a complete mechanism to disseminate
justice if any injustice has been caused by the
disciplinary authority, therefore, this Court finds
it appropriate to relegate the petitioner to the
remedy of appeal under the Rules, 1999. Hence,
the writ petition is not maintainable and
accordingly, dismissed on the ground of
alternative remedy.

29. However, in the interest of justice,
it is provided that if petitioner prefers any
appeal within a period of eight weeks from
today, the appellate authority shall consider
it on merits without entering into the
question of limitation.
----------
(2020)12ILR A679
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.12.2020

BEFORE
THE HON'BLE CHANDRA DHARI SINGH, J.
Service Single No. 14731 of 2020
connected with S.S. No. 14024 of 2020 and S.S.
No. 13197 of 2020

Dr. Narendra Singh Sengar & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Laltaprasad Misra, Prafulla Tiwari.

Counsel for the Respondents:
C.S.C.

A. Service Law - Cancellation of contractual
appointment - Inquiry - The State cannot
take away employment of the petitioners
who are not responsible for any irregularities
in the appointment without proper inquiry of
each appointment individually or appraisal of
performance of every employee individually.
Not approval of any Government Order by Cabinet,
cannot said to be a wrong committed by the
employee and therefore, the petitioners cannot
suffer
for
any
irregularities
committed
by
Government authorities. (Para 27, 29, 30)

In the present case, services of all the petitioners
have been cancelled and a decision for no further
renewal
of
any
contractual
employee
in
Homeopathic Colleges has been taken. It is clear
law that eligibility of any candidate is to be
reckoned not from his or her selection but in terms
of rules or advertisement for the respective post. It
is also settled law that authority publishing the
advertisement/notification or any GO represents to
the members of the public that it is bound by such
representation. Any complaint regarding an
appointment should be examined and the decision
be taken individually and not by a general order.
The appointment of the petitioners was made after
adopting the procedure prescribed in the statute
as well as the advertisement dated 15.12.2017
and if the appointment is cancelled by a general
order, without appointing teachers on regular basis
by UPPSC, then the students who are studying in
the said Homeopathic Colleges may also suffer
irreparably. (Para 29)

B. The contractual employees can only be
replaced by regularly selected persons - It
680 INDIAN LAW REPORTS ALLAHABAD SERIES
is settled law that one set of contractual
employee should not be replaced by another set
of contractual employees unless it is found by
the authorities that the persons working on
contractual basis are not working satisfactory.
(Para 28)

C. Legitimate Expectation - One amongst
several tools incorporated by the Court to
review administrative action. A person may have
a reasonable or legitimate expectation of being
treated in a certain way by the administrative
authorities owing to some consistent practice in
the past or an express promise made by the
concerned authority.

There is also a legitimate expectation of the
petitioners who have been appointed on
contractual basis in different colleges on their
respective posts after following due process.
(Para 30, 31)

Writ Petitions allowed. (E-4)

Precedent followed:

1. Navjyoti Coop. Group Housing Society Vs
U.O.I., (1992) 4 SCC 477 (Para 32)

Present petition assails orders dated
14.08.2020,
passed
by
the
State
Government.

(Delivered by Hon'ble Chandra Dhari
Singh, J.)

1. Since
common questions
are
involved in all the above-mentioned three
writ petitions, they are being decided
together.

2. Brief facts of the case are as
follows:

(i) In the State of U.P. in various
Government
Homeopathic
Medical
Colleges, the number of qualified teachers
selected through Uttar Pradesh Public
Service
Commission
(hereinafter
be
referred as 'UPPSC') were not available
and, therefore, the State Government issued
Government Order dated 28.05.2015 giving
out that teachers of various categories be
appointed on contract basis through a
selection based on interview from amongst
the teachers having retired from various
Government
Homeopathic
Medical
Colleges situated in the State of U.P. or
outside the State of U.P.

(ii) A selection for appointment on
contract basis in accordance with the
provisions contained under Government
Order dated 28.05.2015 took place but the
requisite hands for teaching in various
Government
Homeopathic
Medical
Colleges including the newly created
Government
Homeopathic
Medical
Colleges in various districts could not be
made available. Therefore, in order to meet
the requirement of teachers of various
categories, such as, Lecturers or Readers or
Professors, the State Government issued
Government
order
dated
27.10.2017
modifying the earlier Government order
dated 28.05.2015. The difference between
the two government orders are that as per
Government Order dated 28.05.2015 only
teachers
having
retired
from
State
Government
Homeopathic
Medical
Colleges could be appointed whereas as per
Government Order dated 27.10.2017 it was
inter-alia provided that the teachers either
serving or having retired from Government
Homeopathic Medical Colleges located
inside the State of U.P. or outside or retired
or serving teachers of Private Homeopathic
Medical Colleges located inside the State
of
U.P.
or
outside
having
requisite
experience could also be appointed.

(iii) In the Government Order dated
28.05.2015, it was provided that the
appointment of the teachers retired from
Government
Homeopathic
Medical
Colleges could be made for a period of one
year or till the availability of the candidates
12 All. Dr. Narendra Singh Sengar & Ors. Vs. State of U.P. & Ors.
681
selected by the UPPSC whereas in the
Government order dated 27.10.2017 it was
provided that the teachers to be appointed,
who could be either retired or serving
teachers of
Government Homeopathic
Medical
Colleges
or
from
Private
recognized
Government
Homeopathic
Medical Colleges, could continue till the
availability
of
the
regularly
selected
candidate from UPPSC or till attaining the
age of 65 years.

(iv) In furtherance of the Government
order dated 27.10.2017, an advertisement
was issued on 15.12.2017 mentioning that
contractual appointment was to be made for
the period till the availability of regularly
selected candidate or till attaining the age
of 65 years. It was further mentioned in the
advertisement that the appointment was to
be made for a period of one year or till the
availability
of
the
regularly
selected
candidate from the UPPSC or till attaining
the age of 65 years, whichever is earlier.

(v) The petitioners submitted their
candidature and they were subjected to
selection process as prescribed under
Government order dated 27.10.2017, and
selected and appointed on their respective
posts.

(vi) On 26.03.2019 some deliberations
through Video Conferencing took place
under
Chairmanship
of
Secretary,
Department
of
AYUSH,
U.P.
with
participation of Regional Ayurvedic and
Unani
Officers,
District
Homeopathic
Officers and Principals of Ayurvedic and
Unani and Homeopathic Medical Colleges.
The said video conferencing deliberations
provided that contractual appointment of
employees be made only for a period of 11
months and in no circumstance the
employees shall be paid salary for twelve
months. On the basis of the drawn up
proceedings of the deliberations through
video conferencing as held on 26.03.2019,
the Director, Homeopathy, U.P., Lucknow
issued a letter dated 29.03.2019 addressed
to
all
Principals
of
Government
Homeopathic
Medical
Colleges
and
Hospitals,
U.P.
and
to
all
District
Homeopathic Officers of the State of U.P.
directing that the action be taken on the
basis of the decision taken through the
video conferencing dated 26.03.2019.

(vii)
The
Director,
Homeopathic,
U.P./respondent no.2 issued a letter dated
20.06.2019 instructing all the Principals of
Government
Homeopathic
Medical
Colleges and Hospitals of U.P. to discharge
the petitioners till execution of any fresh
contract and in furtherance of the same the
petitioners were discharged on different
dates after completing one year of service.

(viii) Thereafter, the Director issued
letter dated 06.07.2019 providing that in the
public
interest/governmental
functioning
interest, it was necessary and compulsive to
continue to engage teachers on contract basis
and the teachers already appointed be engaged
on contract basis for a period of 11 months
after creating a break of seven days. The
names of all the petitioners find mention in the
list attached to the letter dated 06.07.2019.

(ix)
Respondent
No.1
i.e.
State
Government issued two orders on 14.08.2020,
in which, it has been stated that there are many
complaints regarding renewal of tenureship on
contractual basis pending before the Uttar
Pradesh Lokayukt, Lucknow and, therefore,
renewal of the tenure of the petitioners on
contractual basis on various posts is not liable
to be done. It is also contained in the said order
that new process for selection on contractual
basis for various specified posts may be
initiated. Vide another order of the same day
i.e. 14.08.2020, Government Order dated
11.04.2018 was cancelled.

Hence, the instant writ petition has
been filed challenging aforesaid orders
dated 14.08.2020.
682 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Dr. L.P. Mishra, learned counsel
appearing for the petitioner has submitted
that bare perusal of the impugned orders
dated
14.08.2020
reveals
that
the
foundation for passing the impugned orders
is an inquiry report, which was submitted
by Ms. V. Hekali Jhemomi, Secretary,
Medical Department, U.P. Government. It
is submitted that on the same matter earlier
an inquiry was conducted by Shri R.N.
Bajpai,
Special
Secretary,
AYUSH
Department, Government of U.P., who
submitted his inquiry report before the
Government but it appears from the perusal
of the impugned orders that the inquiry
report of Shri R.N. Bajpai has not been
considered by respondent no.1 while
passing the impugned orders.

4. It has further been submitted that
findings given in the impugned orders dated
14.08.2020 are contrary to the documents on
record because while issuing Government
Order dated 11.04.2018, earlier Government
Orders dated 28.05.2015 and 27.10.2017
were
not
superseded.
Therefore,
the
impugned orders dated 14.08.2020, which
has been passed on the inquiry report of Ms.
V. Hekali Jhemomi, are perverse in nature
and cannot be relied upon.

5. Dr. Mishra has submitted that in all
the nine Homeopathic Medical Colleges
where the appointments were done on
contractual basis, posts were vacant since
no regular incumbents were available due
to non-selection by UPPSC. It has been
submitted that the matter was referred to
the State Government by referring the
provisions of Government Orders dated
28.05.2015 and 27.10.2017. Thereafter,
State Government directed respondent no.2
to hold selection by adopting the procedure
as prescribed in the aforesaid Government
Orders.

6. Dr. Mishra has submitted that the
aforesaid decision for appointment of
teachers
on
contractual
basis
in
Homeopathic Medical Colleges were taken
by State Government in peculiar and
special circumstances since the working in
almost all Homeopathic Medical Colleges
in the State of U.P. were paralysed due to
absence of regular teachers and, therefore,
there is no fault on the part of the
petitioners. Apart from this, before issuing
Government Order dated 11.04.2018, all
the Government Orders, issued earlier,
were considered and only thereafter, a
conscious
decision
was
taken
and
Government Order dated 11.04.2018 was
issued.

7. Dr. Mishra has submitted that the
respondents are trying to appoint other
contractual employees of their own choice
on different posts in place of the petitioners
by ousting them. It is settled law that one
set of contractual employees cannot be
replaced by another set of contractual
employees and, therefore, the action of the
respondents to appoint other contractual
employees in place of the petitioners is
against the settled law.

8. It has been submitted that action of
the respondents in extending/renewing the
tenure of contractual employees in the Nine
State run Homeopathic Colleges in Uttar
Pradesh on the basis of pick and choose,
and denying the same benefit to the
petitioners despite their eligibility and
entitlement
as
per
provisions
of
Government Orders dated 28.05.2015 &
27.10.2017 as well as the terms and
conditions of their respective appointment
orders, is not only illegal, arbitrary and
malafide but discriminatory as well as
contrary to Articles 14 & 16 of Constitution
of India.
12 All. Dr. Narendra Singh Sengar & Ors. Vs. State of U.P. & Ors.
683

9. Dr. Mishra has submitted that term
of contractual appointments of all the
petitioners
are
required
to
be
renewed/extended
for
further
twelve
months because till date, regularly selected
candidates from UPPSC are not available.
It has been submitted that no irregularity
has been found against the contractual
appointments of the petitioners and thus,
refusal of renewal/extension of their
contractual period is illegal and not
sustainable in the eyes of law. It has been
submitted that there is also a legitimate
expectation of the petitioners that their
tenure for contractual employment may be
renewed/extended from time to time and
they may be allowed to perform their duties
till
regularly
selected
candidates
are
available from UPPSC or till they attain the
age of 65 years. Dr. Mishra has vehemently
submitted that due to illegal and arbitrary
action of the respondents, Fundamental
Right of the petitioners as enshrined under
Article 21 of the Constitution of India has
been curtailed.

10. It has been submitted that instead
of allowing the petitioners to continue to
work and function as Lecturers or Readers
or Professors in Government Homeopathic
Medical Colleges in the State of U.P. till
they attain the age of 65 years or till a
regularly selected candidate is made
available
by
the
UPPSC,
the
State
Government has issued the impugned
Order dated 14.08.2020 and has written a
letter dated 14.08.2020 addressed to the
Director, Homeopathic, U.P., Lucknow.

11. It has been submitted that the
impugned letter/order dated 14.08.2020 is
not referable to Article 162 and 166 of the
Constitution of India and therefore, the
same apart from being illegal and arbitrary
is also without jurisdiction and has also
been passed prior to passing of the
Government Order dated 14.08.2020 by
means of which Government Order dated
11.04.2018 has been cancelled. It has been
submitted that the impugned Government
Order dated 14.08.2020 by means of which
Government Order dated 11.04.2018 has
been cancelled cannot at all be given
retrospective effect so as to disturb the
already
concluded
selection
process
followed by issuance of appointment
letters, and the same is to be followed
prospectively.

12. Dr. Mishra, learned counsel, has
submitted that the ground while passing
impugned order/letter dated 14.08.2020 to
the effect that still the State Government is
receiving many complaints in regard to
selection and appointment of teachers on
contract basis in Government Homeopathic
Medical Colleges in the State of U.P., is
illegal and arbitrary and could not have
been a ground, inasmuch as, in every
selection several complaints are made by
un-selected candidates and merely because
complaints are made or received cannot
mean that the selection and appointment was
not valid or was illegal. The impugned
exercise has been undertaken without
issuing any notice to the petitioners and
without affording any opportunity of hearing
to them. The petitioners cannot at all be
made to suffer on the ground as to whether a
policy decision has been taken by the
Cabinet or not or a particular Government
Order has been issued after taking approval
from the Cabinet or not. The petitioners
being bonafinde candidates and being fully
eligible submitted their candidature pursuant
to the advertisement and were selected and
appointed either as Lecturers or Readers or
Professors in Government Homeopathic
Medical Colleges in the State of U.P. on the
basis of their merits.
684 INDIAN LAW REPORTS ALLAHABAD SERIES

13. It is submitted that the service
record of the petitioners are unblemished.
All
the
petitioners
have
rendered
satisfactory service and there has been no
dissatisfaction on the part of their superiors
nor is there any complaint against their
functioning. On a general complaint, the
inquiry was initiated but the petitioners
have not been made party by way of
issuing show cause or inviting any
explanation on the complaint and also it is
not disclosed by the respondent vide the
impugned order that the complaint received
against which petitioner and whether
service of any petitioner was unsatisfactory
or appointment of any petitioner is contrary
to any Government Order. It has been
submitted that if any complaint is received
regarding illegal appointment then the
department/respondent might examine each
case individually and pass appropriate
order against each petitioner separately but
discontinuing the service of the petitioners
by passing a general impugned order is
contrary to the earlier Government Order
dated 28.05.2015 and 27.10.2017 and the
advertisement dated 15.12.2017.

14. It is submitted that the petitioners
have got a legal right to continue till the
availability
of
the
regularly
selected
candidates through UPPSC or till attaining
the age of 65 years and the respondents
have corresponding legal obligation to
allow the petitioners to continue till
availability
of
the
regularly
selected
candidates from UPPSC or till attaining the
age of 65 years by the petitioners by
adhering to the terms of Government Order
dated 27.10.2017.

15. Per Contra, Shri Ranvijay Singh,
learned
counsel
for
the
State
has
vehemently opposed the submissions of
petitioner's counsel and submitted that the
advertisement was issued as per the
provisions/conditions
contained
in
Government Order dated 27.10.2017 for
filling up the posts of teachers in 09
Government Homeopathic Colleges on
contractual basis. In the year 2018, the
vacant posts of teachers were filled up
through departmental selection committee
on the basis of interview on contractual
basis, whose term had already completed in
the year 2019 and thereafter, their contracts
were renewed for 11 months.

16. It has been submitted that on the
aforesaid
contractual
appointments,
a
complaint
was
filed
before
Hon'ble
Lokayukt, U.P., who vide letter dated
02.09.2019, directed the State Government
to conduct an inquiry in respect of
irregularities committed in the contractual
appointments of teachers in Government
Homeopathic
Medical
College.
In
pursuance of the direction, Ms. V. Hekali
Jhemomi,
Secretary,
Department
of
Medical and Health, Government of U.P.
was appointed as inquiry officer who
conducted inquiry and submitted a report
stating therein that the appointments were
made on contractual basis in the Homeopathy
Medical Colleges vide Government Order
dated 11.04.2018. It was further mentioned in
the inquiry report that Government Order
dated 11.04.2018 was not approved by
Hon'ble Council of Ministers, whereas earlier
Government Orders dated 28.05.2015 and
27.10.2017 were issued with the approval of
Hon'ble Council of Ministers, Government of
U.P., as such contractual appointments made
on the basis of Government Order dated
11.04.2018 are not legally sustainable. It has
been submitted that the inquiry officer made
recommendation for termination of the
contractual appointment of the teachers and
therefore, the contractual term of the
petitioners have not been renewed further.
12 All. Dr. Narendra Singh Sengar & Ors. Vs. State of U.P. & Ors.
685

17. It is further submitted that several
complaints were received in respect of the
aforementioned
appointments
and
the
matter is still being before the Hon'ble
Lokayukt. The State Government vide
order/letter dated 14.08.2020 cancelled the
appointment of contractual teachers and
vide office memorandum dated 14.08.2020,
the decision for not renewing the term of
aforementioned contractual appointments
was taken. It was also decided that fresh
selection
process
for
contractual
appointments in terms of Government
Order dated 28.05.2015 be carried out.

18. It is submitted that the petitioners
have twisted the facts mentioned in the
Government Order dated 27.10.2017 just to
mislead this Hon'ble Court, whereas the
correct facts are mentioned in the Para-4
(Aa)
(2)
of
the
afore-mentioned
Government Order which reads as under:-

"प्रदेश एांव प्रदेश के बाहर मान्यता प्राप्त जनिी
होम्योपैजथक मेजड्कल कालेिोां एांव जचजकत्सालयोां के
सेवारत या सेवाजनवृत्त ऐसे जशक्षकोां जिनके द्वारा सेवाकाल
में कम से कम 10वर्य का जशक्षण कायय अजनवायय रूप से
सम्पाजदत जकया गया हो, को रािकीय होम्योपैजथक
मेजड्कल कालेिोां में प्रोफेसर/रीड्र/प्रवक्ताओां के ररक्त
पदो के सापेक्ष सांजवदा के आधार पर रखा िाये। ऐसे
जशक्षकोां को उनकी 65 वर्य की आयु तक अथवा लोक सेवा
आयोग से अभ्यथी उपलब्ध होने तक ही रखे िाने का
प्राजवधान जकया िाये"

19. Learned counsel has submitted
that in view of the above it is crystal clear
that the appointments were to be made on
contractual basis and the term of contract of
employee is only up to 65 years of age or
till availability of selected candidates from
Public Service Commission. It is submitted
that these contractual appointments do not
fall within the regular appointments,
therefore, these appointments were made
on the basis of contract only for 11 months
and after completion of afore-mentioned
term, as per the decision taken by the
Government, the contract of the petitioners
were not renewed.

20. It is further submitted that Ms. V.
Hekali Jhemomi, Secretary, Department of
Medical Health, Government of U.P. conducted
an inquiry and submitted report wherein it has
been mentioned that Government Order dated
11.04.2018 pursuant to which appointment of
contractual teacher were made in the year 2018,
was not issued after approval of Hon'ble Council
of Ministers whereas the earlier Government
Orders dated 28.05.2015 and 27.10.2017 were
issued after approval of Hon'ble Council of
Ministers. Therefore, it is evident that the
appointment of contractual teachers made
pursuant to Government Order dated 11.04.2018
are not in accordance with law as such
recommendation has been made for cancellation
of the aforesaid appointments.

21. Learned counsel for the State has
submitted that the petitioners were engaged
on contractual basis and they were not
appointed
through
UPPSC.
Several
complaints were received in respect of
selection process of the aforementioned
appointments and the same was inquired into
as per the orders of Hon'ble Lokayukt and it
was found that the aforesaid appointments
were not in accordance with law, therefore,
the appointments were cancelled and fresh
selection
process
has
been
initiated.
Therefore, there is no illegality in the
impugned orders. The instant writ petition is
devoid of merit and be dismissed as such.

22. Counter and rejoinder affidavits
have been exchanged.

23. I have heard learned counsel for
the parties and perused the record. I have
also perused Government Orders dated
28.05.2015, 27.10.2017 & 11.04.2018 and
686 INDIAN LAW REPORTS ALLAHABAD SERIES
appointment letters of the petitioners as
also Advertisement No.2/2020-21 dated
24.11.2020.

24. Vide order dated 04.09.2020
passed by co-ordinate Bench of this Court,
Additional Chief Secretary, AYUSH was
directed to file his personal affidavit. In
pursuance to the said order, an affidavit has
been filed on 29.09.2020. In Paras - 12 &
13 of the said affidavit it is contended that
State Government vide Government Order
dated 14.08.2020 has decided to make fresh
contractual appointments of teachers as per
provisions of Government Orders dated
28.05.2015 and 27.10.2015 and if the
petitioners are eligible for the concerned
post, they may also submit their application
form as per law and may participate in the
fresh selection process.

25. Bare perusal of Advertisement
No.2/2020-21 dated 24.11.2020 (Annexure
RA-1 with Rejoinder Affidavit) reveals that
reservation has been applied by clubbing
all the vacant posts of Lecturers (subjectwise) available in all the Government
Homeopathic Medical Colleges so that
adequate reservation is provided and the
same procedure was also followed in the
case in hand in terms of Government Order
dated 11.04.2018. Since the procedure
prescribed in Government Order dated
11.04.2018 is to be followed in the latest
selection process, as per the advertisement
dated 24.11.2020, therefore, it cannot be
said that selection and appointment of the
petitioners either as Professors or Readers
or Lecturers in terms of Government Order
dated 11.04.2018 was bad in the eyes of
law.

26. It is not the case of the State that
the petitioners are not having requisite
qualifications for their respective posts. It is
also not the case of the State that the
appointments of the petitioners were
contrary to the provisions of any statute as
well as advertisement dated 15.12.2017. It
is also not the case of the State that there is
any complaint regarding performance of
the petitioners as Lecturers, Readers or
Professors in their respective colleges. It is
only argued by the State that some
complaints
were
received
by
the
Department
regarding
irregularities
in
appointment of the few of the candidates
who have been appointed in pursuance of
the aforesaid advertisement in the year
2017 and it is also the case of the State that
the appointments of the petitioners were
made
on
contractual
basis
in
the
Homeopathic
Medical
Colleges
vide
Government Order dated 11.04.2018 which
is not approved by Hon'ble Council of
Ministers whereas earlier Government
Orders dated 28.05.2015 and 27.10.2017
were issued with the approval of Hon'ble
Council of Ministers of Government of
U.P. Therefore,
contract
appointments
made on the basis of Government Order
dated
11.04.2018
are
not
legally
sustainable.

27. From perusal of the record, it is
evident that the authorities concerned have
taken a decision for cancelling contractual
appointment of the petitioners without
initiating a proper individual inquiry
against each candidate and also not given
them opportunity to represent their case on
the said complaint. If any irregularity has
been committed in the selection and
appointment
of
the
petitioners
on
contractual basis, then the law is already
settled that the illegality may be examined
by the process of due legal inquiry and the
persons concerned may be denied renewal
of
further
term
of
the
contractual
employment,
if
the
allegation
of
12 All. Dr. Narendra Singh Sengar & Ors. Vs. State of U.P. & Ors.
687
irregularity in selection process is found
proved. However, in the present case, no
inquiry has been initiated to find out
irregularity
and
arbitrariness
in
appointment
of
individual
contractual
employees.

28. In the case in hand, individual
cases were not examined by the authorities
concerned but in one stroke, by a general
order, all contractual appointments have
been
cancelled.
The
department
has
initiated process for filling the said vacancy
vide advertisement dated 24.11.2020 on
contractual basis. It is settled law that one
set of contractual employee should not be
replaced by another set of contractual
employees unless it is found by the
authorities that the persons working on
contractual
basis
are
not
working
satisfactory. The contractual employees can
only be replaced by regularly selected
persons. The petitioners herein
were
appointed for a specified period as
Lecturers, Readers and Professors in their
respective Homeopathic Colleges as per
terms of Advertisement dated 15.12.2017
as
also
Government
Orders
dated
28.05.2015 and 27.10.2017.

29. The services of all the petitioners
have been cancelled and a decision for no
further
renewal
of
any
contractual
employee in Homeopathic Colleges has
been taken. It is clear law that eligibility of
any candidate is to be reckoned not from
his or her selection but in terms of rules or
advertisement for the respective post. It is
also settled law that authority publishing
the
advertisement/notification
or
any
Government
Order
represents
to
the
members of the public that it is bound by
such representation. Therefore, the State
cannot take away employment of the
petitioners who are not responsible for any
irregularities in the appointment without
proper
inquiry
of
each
appointment
individually or appraisal of performance of
every
employee
individually.
Any
complaint regarding an appointment should
be examined and the decision be taken
individually and not by a general order. Not
approval of any Government Order by
Cabinet, cannot said to be a wrong
committed by the employee and therefore,
the petitioners cannot suffer for any
irregularities which have been committed
by
government
authorities.
The
appointment of the petitioners was made
after adopting the procedure prescribed in
the statute as well as the advertisement
dated 15.12.2017 and if the appointment is
cancelled by a general order, without
appointing teachers on regular basis by
UPPSC, then the students who are studying
in the said Homeopathic Colleges may also
suffer irreparably.

30. In the instant case, the petitioners
have been appointed on contractual basis
on their respective posts after completion
of due process. If any irregularity has been
committed in the selection and appointment
of the petitioners, then the said irregularity
may be detected by the process of due legal
inquiry.
There
is
also
a
legitimate
expectation of the petitioners who have
been appointed on contractual basis in
different colleges on their respective posts
after following due process.

31. Legitimate Expectation: one
amongst several tools incorporated by the
Court to review administrative action. A
person may have a reasonable or legitimate
expectation of being treated in a certain
way by the administrative authorities owing
to some consistent practice in the past or an
express promise made by the concerned
authority.
688 INDIAN LAW REPORTS ALLAHABAD SERIES

32. In, Navjyoti Coop. Group
Housing Society v. Union of India -
(1992) 4 SCC 477, the new criteria for
allotment of land was challenged. In the
original policy, the seniority with regards to
allotment was decided on the basis of date
of registration. Subsequently, a change in
policy was made in 1990, changing the
criteria for deciding seniority based on the
date of approval of the final list.

The
Hon'ble
Supreme
Court
in
Navjyoti Coop. Group Housing Society's
case (supra) held that the Housing Societies
were entitled to ''legitimate expectation'
owing to the continuous and consistent
practice in the past in matters of allotment.
The Court further elucidated on the
principle
stating
that
presence
of
''legitimate expectations' can have different
outcomes and one such outcome is that the
authority
should
not
fail
''legitimate
expectation' unless there is some justifiable
public policy reason for the same.

It
is
further
emphasized
that
availability of reasonable opportunity to
those likely being affected by the change in
a policy which was consistent in nature is
well within the ambit of acting fairly. The
Hon'ble Court held that such an opportunity
should have been given to the Housing
Societies by way of a public notice.

33. In view of the foregoing
discussion, all the above-mentioned three
petitions are allowed.

Impugned
Order
No.2188/96AYUSH-2-2020-10/2015
T.C.-I
dated
14.08.2020 and Order/Letter No.1561/96AYUSH-2-2020-10/2015
T.C.-I
dated
14.08.2020 are hereby quashed.

The petitioners are allowed to work on
their respective posts in their respective
colleges as per Government Orders dated
28.05.2015 & 27.10.2017.

However, in case, any complaint is
made/receipt, the State shall be at liberty to
examine/inquire the said complaint in
respect of each candidate as per law and
pass order on each case separately.

The State or the respondent/authorities
shall also be at liberty to examine
performance of each petitioner on their
respective posts before renewing their
services after expiry of their contract period
and pass appropriate order in accordance
with law.
----------
(2020)12ILR A688
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.12.2020

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Writ A No. 17061 of 2010

Ram Bahore & Anr. ...Petitioners
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Swarn Kumar Srivastava, Sri Anil Kumar
Srivastava

Counsel for the Respondents:
C.S.C.

A. Service Law - U.P. Retirement Benefits
Rules, 1961 - Rule 3(8) - Regularisation
and Payment of Salary After regularization
the entire period of service shall be
counted
for
purpose
of
fixation
of
pensionary benefits. Services rendered in the
work-charged establishment shall be treated as
qualifying service for grant of pension. (Para 9,
10, 11, 12)

In the present case, services of the petitioners
have already been regularised and they were