# Dr. Vijay Kumar Srivastava & Ors v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 1806
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-26
- **Case number:** Writ-A No. 18336 of 2019
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-vijay-kumar-srivastava-ors-v-state-of-u-p-ors-45065
- **Pages:** 19

## Headnote

C.S.C., Sri Bhupendra Nath Singh
A.
Service
-
Pension
-
Qualifying
period/service - Uttar Pradesh Higher
Education
Services
Commission
Act,
1980: Section 12, 13, 31, 31-E;

Rule of Estoppel - A person cannot say at
one time that a transaction is valid to
obtain some advantage and at the same
time say that it is void for the purpose of
securing
some
other
advantage
-
Petitioners' appointment is based on doctrine of
election which is the Rule of estoppel or a Rule
of equity. They cannot be permitted to "blow
hot and cold", "fast and loose" or "approbate
and reprobate". Petitioners have knowingly,
willfully
accepted
the
benefits
of
their
appointment by absorption under GOs dated
6.6.2014 and 2.5.2016 as an exception to the
normal rule of public employment and Ss 12
and 13 of the Act, 1980 resulting in a contract
of service. Therefore, they cannot question the
validity or binding effect of the aforesaid
Government Orders. (Para 21 to 30, 40(iii),
41(iv))

B. Rules of Absorption - It is settled law
that a person cannot challenge the very
source
i.e.
Statute,
Rules
or
the
Government Orders under which he was
appointed - The GO dated 6.6.2014 and
amended S. 31-E of the Act, 1980 is a one-time
measure for absorption. Absorption in public
employment is not a right but, an exception to
the normal rule and subject to conditions. Once
the petitioners have exercised the option for
their absorption in public employment, they
cannot say that condition no. 4 is arbitrary.
Past
service
as
part
time
teacher
on
honorarium prior to absorption cannot be
added in their length of service in the absence
of any constitutional or legal right. (Para 31 to
40, 41(ii), 41(v))

C. U.G.C. Regulation 2010: Clause 10.1(f)
- The said clause is applicable only to
adhoc and temporary appointees which fall
under a different class than the persons /
petitioners
who
were
engaged
by
the
management on honorarium basis per lecture
as permitted by GO dated 7.4.1998. These
engagements
were
made
without
recommendation
of
any
duly
constituted
1808 INDIAN LAW REPORTS ALLAHABAD SERIES
Selection Committee under the Act, 1980. (Para
41(i))

Writ Petition dismissed. (E-4)

Precedent followed: -

## Text

_Characters 0–39,998 of 61,923. This is a partial read: ask again with offset=39998 for what follows._

1 All. Rakesh Kumar Vs. Principal Government Inter College, Prayagraj & Ors.
1807
Authorities in the State of Uttar Pradesh
within two months from today about the
Officers
and
Employees
who
are
unauthorisedly over staying or retaining
the Government accommodation beyond
prescribed limit, after their retirement or
transfer. Within next one month, the State
Government shall ensure that all such
Government
accommodation
being
illegally or unauthorisedly occupied by
retired/transferred Employees and Officers
are vacated immediately. In the event, any
inaction is shown by any authority, the
State
Government
shall
ensure
that
necessary action is also taken against such
authorities.

15. With the aforesaid directions this
writ petition is disposed of.

16. Let a copy of this judgment be
sent by the Registrar General of this Court
to the Chief Secretary, Government of
Uttar Pradesh for necessary action and
compliance.
----------
(2020)1ILR 1806
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.11.2019

BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Writ-A No. 18336 of 2019

Dr. Vijay Kumar Srivastava & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Anoop Kumar, Sri Vivek Saran

Counsel for the Respondents:
C.S.C., Sri Bhupendra Nath Singh
A.
Service
-
Pension
-
Qualifying
period/service - Uttar Pradesh Higher
Education
Services
Commission
Act,
1980: Section 12, 13, 31, 31-E;

Rule of Estoppel - A person cannot say at
one time that a transaction is valid to
obtain some advantage and at the same
time say that it is void for the purpose of
securing
some
other
advantage
-
Petitioners' appointment is based on doctrine of
election which is the Rule of estoppel or a Rule
of equity. They cannot be permitted to "blow
hot and cold", "fast and loose" or "approbate
and reprobate". Petitioners have knowingly,
willfully
accepted
the
benefits
of
their
appointment by absorption under GOs dated
6.6.2014 and 2.5.2016 as an exception to the
normal rule of public employment and Ss 12
and 13 of the Act, 1980 resulting in a contract
of service. Therefore, they cannot question the
validity or binding effect of the aforesaid
Government Orders. (Para 21 to 30, 40(iii),
41(iv))

B. Rules of Absorption - It is settled law
that a person cannot challenge the very
source
i.e.
Statute,
Rules
or
the
Government Orders under which he was
appointed - The GO dated 6.6.2014 and
amended S. 31-E of the Act, 1980 is a one-time
measure for absorption. Absorption in public
employment is not a right but, an exception to
the normal rule and subject to conditions. Once
the petitioners have exercised the option for
their absorption in public employment, they
cannot say that condition no. 4 is arbitrary.
Past
service
as
part
time
teacher
on
honorarium prior to absorption cannot be
added in their length of service in the absence
of any constitutional or legal right. (Para 31 to
40, 41(ii), 41(v))

C. U.G.C. Regulation 2010: Clause 10.1(f)
- The said clause is applicable only to
adhoc and temporary appointees which fall
under a different class than the persons /
petitioners
who
were
engaged
by
the
management on honorarium basis per lecture
as permitted by GO dated 7.4.1998. These
engagements
were
made
without
recommendation
of
any
duly
constituted
1808 INDIAN LAW REPORTS ALLAHABAD SERIES
Selection Committee under the Act, 1980. (Para
41(i))

Writ Petition dismissed. (E-4)

Precedent followed: -

1. University of Rajasthan and another Vs.
Prem Lata Agrawal, (2013) 3 SCC 705 (Para
19)

2. Union of India and others Vs. K.G.
Radhakrishna Panickar and others, (1998) 5
SCC 111 (Para 20)

3. Halsbury's Laws of England, 4th Edition, Vol.
16, Para 1508 (Para 23)

4. Joint Action Committee of Air Line Pilots'
Association of India (ALPAI) and others Vs.
Director General of Civil Aviation and others,
(2001) 5 SCC 435 (Para 24)

5. Babu Ram alias Durga Prasad Vs. Indra Pal
Singh, 1998(6) SCC 358 (Para 24)

6. P.R. Deshpande Vs. Maruti Balaram Haibatti,
1998(6) SCC 507 (Para 24)

7. Mumbai International Airport Private Ltd. Vs.
Golden Chariot Airport and another, 2010 (10)
SCC 422 (Para 24)

8. Cauvery Coffee Traders, Mangalore Vs.
Hornor
Resources
(International
Company
Limited), (2011) 10 SCC 420 (Para 25, 26 &
27)

9. Ammal Vs. B. Shama Rao, AIR 1956 SC 593
(Para 25)

10. CIT Vs. V. MR.P. Firm Muar, AIR 1965 SC
1216 (Para 25)

11. NTPC Ltd. Vs. Reshmi constructions,
Builders & Contractors, (2004) 2 SCC 663 (Para
25)

12. Ramesh Chandra Sankla Vs. Vikram
Cement, (2008)14 SCC 58 (Para 25)

13. Pradeep Oil Corpn. Vs. MCD, (2011) 5 SCC
270 (Para 25)
14. V. Chandrasekaran and another Vs.
Administrative Officer and others, (2012) 12
SCC 133 (Para 26)

15. Rajasthan State Industrial Development and
Investment Corporation and another Vs. Diamond
& Gem Development Corporation Limited and
another, (2013) 5 SCC 470 (Para 27)

16. State of Punjab and others Vs. Dhanjit
Singh Sandhu, (2014) 15 SCC 144 (Para 28)

17. CIT Vs. MR. P. Firm Muar, AIR 1965 SC
1216 (Para 28)

18. Maharashtra SRTC Vs. Balwant Regular
Motor Service, AIR 1969 SC 329 (Para 28)

19. R.N. Gosain Vs. Yashpal Dhir, (1992) 4 SCC
683 (Para 28)

20. P.R. Deshpande Vs. Maruti Balaram
Haibatti, (1998) 6 SCC 507 (Para 28)

21. Zila Dastavej Lekhak Association & another
Vs. State of U.P. and others, AIR 1996 2107
(Para 29)

22. Secretary, State of Karnataka Vs. Uma Devi
(2006) 4 SCC 1 (Para 31)

23. Pratap Kishore Panda and others Vs. Agni
Charan Das and others, (2015) 17 SCC 789
(Para 32)

23. State of U.P. Vs. Anand Kumar Yadav,
(2018) 13 SCC 560 (Para 33)

24. Brij Mohan Lal Vs. Union of India and
others, (2012) 6 SCC 502 (Para 34)

25. Indu Shekhar Singh and others Vs. State of
U.P. and others, (2006) 8 SCC 129 (Para 35)

26. R.N. Gosain Vs. Yashpal Dhir, (1992) (4)
SCC 683 (Para 35)

27. Ramankutti Guptan Vs. Avara, (1994) 2
SCC 642 (Para 35)

28. Bank of India and others Vs. O.P.
Swarnakar and others, (2003) 2 SCC 721 (Para
35)
1 All. Dr. Vijay Kumar Srivastava & Ors. Vs. State of U.P. & Ors.
1809
29. Mrigank Johari & others Vs. Union of India,
(2017) 8 SCC 256 (Para 36)

30. Union of India Vs. Onkar Chand, (1988) 9
SCC 298 (Para 37)

31. Union of India and others Vs. K Savitri and
others, (1998) 4 SCC 358 (Para 38)

Precedent cited: -

1. Zila Dastavej Lekhak Association and
another Vs. State of U.P. and others, (1996) 8
SCC 441 (Para 5)

2. Suresh Chandra Vs. State of U.P. and others,
(2014) 7 ADJ 721 (Para 5)

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1. Whether (i) period spent in
engagement on honorarium by the
petitioners prior to their appointment by
absorption under the Government Orders
dated 6.6.2014 and 2.5.2016, is liable to be
counted in their length of service for all
consequential
benefits
including
promotion?, and (ii) the condition no. 4 of
the Government Order dated 6.6.2014
under which petitioners got appointment is
liable to be quashed?

2. Heard Sri Vivek Saran, learned
counsel for the petitioners and Sri Manish
Goyal, learned Additional Advocate General
assisted by Sri Anil Pandey, learned standing
counsel for the respondents.

Facts

3. The petitioners who have been
appointed
by
absorption
under
the
Government Order dated 6.6.2014 as an
exception
to
the
normal
rule
of
appointments have filed, this writ petition
praying for the following reliefs:-

"1. Issue any other writ, order or
direction in the nature of certiorari
quashing the condition no. 4 of the
Government Order dated 6.6.2014 and
condition no. 4 of the Government Order
dated 2.5.2016 (Annexure Nos. 3 & 4).

2. Issue any other writ, order or
direction in the nature of mandamus
commanding the respondent no. 2 to
count the past service rendered by the
petitioners on ad-hoc/honorarium basis
and grant all consequential benefits
including promotion and monetary, as and
when they falls due."

(emphasis supplied)

Submissions

4. Learned counsel for the petitioners
submits that the condition no. 4 is
arbitrary, and therefore, it deserves to be
struck off.

5. Learned Additional Advocate
General submits that the petitioners got
their absorption under the aforesaid
Government Orders. They cannot be
permitted
to
accept
the
aforesaid
Government Orders for absorption and at
the same time pray to struck off its
condition no. 4. He further submits that the
absorption is subject to the condition
mentioned in the aforesaid Government
Orders dated 6.6.2014 and 2.5.2016. It is
not permissible for the petitioners to
accept some of the conditions which he
find favourable to them and to pray for
striking off the other condition which he
feels unfavourable to him. In support of
his submissions, he relied upon the
judgment of Hon'ble Supreme Court in
Zila Dastavej Lekhak Association &
another Vs. State of U.P. & others (1996)
8 SCC 441 (paras 3 & 4) and judgment of
this Court in Suresh Chandra Vs. State of
1810 INDIAN LAW REPORTS ALLAHABAD SERIES
U.P. & others (2014) 7 ADJ 721 (paras
54, 55 & 56).

Discussing & Finding

6. I have carefully considered the
submissions of learned counsel for the parties.

7. Briefly stated facts of the present
case are that according to the petitioners,
they were engaged in non-government
aided degree colleges under Government
Order dated 07.04.1998 on honorarium
of Rs. 100/- per lecture subject to
maximum of Rs.5000/- in a month.
Section 31-E of The Uttar Pradesh Higher
Education Services Commission Act,
1980( herein after referred to as the Act,
1980) was amended by U.P. Act No.22 of
2014 w.e.f. 26.05.2014 which enabled the
management at the instance of the Director
to offer appointments as teachers to
persons engaged on honorarium basis
subject to the provisions of Sections 12
and 13 of the Act, 1980, if there is
substantive vacancy. Sub-section (4) of
Section 31-E provides that teachers so
appointed shall be entitled to get his salary
as teachers, from the date, he joins the post
in pursuance of such letter of appointment.
In view of the aforesaid amended Section
31-E,
the
State
Government
issued
Government Order dated 6.6.2014 for
absorption subject to certain conditions.
The petitioners accepted the conditions
and obtained appointment as teachers
subject to final decision in Writ Petition
Petition No. 22349 of 2016 pending in
High
Court
and
some
matters
of
absorption pending in Supreme Court.
Their appointment letters provide for one
year probation period.

8. After appointments on the post of
teacher on accepting the conditions of
absorption
under
the
aforesaid
Government Order dated 6.6.2014, the
petitioners have now challenged one of the
condition of their absorption i.e. the
condition no. 4 which provides that the
services of the teachers / petitioners
shall be counted from the date of
absorption
and
period
of
earlier
engagement on honorarium basis shall
not be counted in length of service for
computation of post retiral benefits.

9. The Government Order dated
6.6.2014 and 2.5.2016 for absorption are
reproduced below:-

(a) Government Order dated
6.6.2014:-

^^mPp f'k{kk vuqHkkx&2

y[kuÅ% fnukad% 06 twu] 2014

egksn;]

mi;qDr fo"k; ds laca/k esa voxr
djkuk
gS
fd
'kklukns'k
la[;k&467@lRrj&2&98&31⁄4191⁄2@93
Vhlh]
fnukad 7-4-1998 esa fofgr 'krksZ ,oa izfrcU/kks ds
v/khu v'kkldh; lgk;rk izkIr Lukrd ,o
LukrdksRrj egkfo|ky;ksa esa f'k{kdks ds fjDr inks
ij fuf'pr ekuns; ds vk/kkj ij f'k{kdks dh j[ks
tkus dh O;oLFkk dh xbZ FkhA mDr 'kklukns'k ds
v/khu fu;qDr ekuns; f'k{kdks ds vkesyu gsrq
m0iz0 mPprj f'k{kk lsok vk;ksx vf/kfu;e] 1980
;Fkkla'kksf/kr 1⁄4r`rh; la'kks/ku1⁄2 vf/kfu;e 2006 esa
/kkjk&31 bZ tksM+h xbZ] ftlesa dfri; 'krksZ ,oa
izfrcU/kks ds v/khu vkesyu dh O;oLFkk dh xbZ gSA
vkesyu ds fy, inks dh miyC/krk lqfuf'pr djus
gsrq m0iz0 mPprj f'k{kk lsok vk;ksx 1⁄4la'kks/ku1⁄2
v/;kns'k] 2014 iz[;kfir fd;k x;k] ftlds }kjk
mDr vf/kfu;e 2006 dh /kkjk 31 bZ ds izLrj&1 esa
'kCn ^^Hkjk ugh tk ldrk gS^^ ds LFkku ij 'kCn
^^Hkjk ugh tk ldk^^ fd;k x;k gSA

2& vr,o ekuns; f'k{kdks ds vkesyu
fo"k;d m0iz0 mPprj f'k{kk lsok vk;ksx
vf/kfu;e] 1980 ;Fkkla'kksf/kr 1⁄4r`rh; la'kks/ku1⁄2
1 All. Dr. Vijay Kumar Srivastava & Ors. Vs. State of U.P. & Ors.
1811
vf/kfu;e 2006 rFkk m0iz0 mPprj f'k{kk lsok
vk;ksx 1⁄4la'kks/ku1⁄2 2014 1⁄4m0iz0 v/;kns'k la[;k&3
lu~ 20141⁄2 dh Nk;k izfr layXu dj izsf"kr djrs
gq, eq>s ;g dgus dk funsZ'k gqvk gS fd d`i;k
vf/kfu;e ,oa v/;ns'k esa fo+|eku O;oLFkkuqlkj
ekuns; f'k{kdks ds vkesyu ds laca/k esa vko';d
dk;Zokgh 'kh"kZ izkFkfedrk ij fuEukafdr 'krksZa ,oa
izfrcU/kks ds v/khu djkus dk d"V djs%&

1⁄411⁄2 mUgh ekuns; f'k{kdks dk vkeysu
fd;k tk;sxk] ftudk p;u miyC/k fjfDr ,oa
vuqeksfnr in ij fof/k vuq:i fd;k x;k gksA

1⁄421⁄2 ekuns; f'k{kd ;w0th0lh0 }kjk
fu/kkZfjr vgZrk;sa iw.kZ djrs gksA

1⁄431⁄2 vkesyu] vkns'k fuxZr gksus dh
frfFk ls izHkkoh gksxh rFkk vkesyu ij mPprj
f'k{kk lsok vk;ksx dh laLrqfr Hkh izkIr dh
tk;sxhA

1⁄441⁄2 bu f'k{kdks dh vf/kdkjh lsok
vkesyu dh frfFk ls vkadh tk;sxh] iwoZ lsok] tks
ekuns; ds vk/kkj ij gS] dks lsokfuo`fRrd ykHkksa
ds fy, vgZdkjh ugh ekuk tk;sxkA

1⁄451⁄2 Hkfo"; esa fdlh izdkj dh
ekuns;@rnFkZ fu;qfDr ugh dh tk;sxhA

1⁄461⁄2 d`i;k mDrkuqlkj vko';d
dk;Zokgh djkrs gq, d`r dk;Zokgh ls rRdky
'kklu dks voxr djkus dk d"V djsA**

(b) Government Order dated
2.5.2016:-

la[;k&8@2016@274@lRrj&2&2016&31⁄4
191⁄2@1993 Vh-lh-AA

fo"k;&v'kkldh;
lgk;rk
izkIr
Lukrd ,oa LukrdksRrj egkfo|ky;ksa esa f'k{kdksa
ds fjDr inksa ij fuf'pr ekuns; ds vk/kkj ij
dk;Z dj jgs ekuns; f'k{kdkas dk vkesyuA

egksn;]

mi;qZDr fo"k;d vius i= la[;k
fMxzh vFkZ&1 1⁄4fo0fu01⁄2 @03 @ 2016&17]
fnukad 13-04-2016 dk d`i;k lanHkZ xzg.k djus
dk d"V djsa] ftlesa ;g voxr djk;k x;k gS
fd fjV ;kfpdk la[;k&33652@2014 Mk0
ftrsUnz dqekj o 09 vU; cuke m0iz0 ljdkj o
02 vU; ekeys esa ek0 mPp U;k;ky;] bykgkckn
}kjk fnukad 06-04-2016 dks fuEuor~ vkns'k
ikfjr fd;s x;s gS%&

The attention of the Court has
been drawn to the fact that by a gazette
notification dated 26 December 2014,
publised on 26 December 2014, the Uttar
Pradesh
Higher
Education
Services
Commission (Amendment) Act, 2014 was
notified and was deemed to have come into
force on 26 May 2014. By and as a result
of Section 3(1), the the Uttar Pradesh
Higher Education Services Commission
(Amendment) ordinance, 2014 has been
repealed.

Since the relief which has been
sought in the petition is to challenge the
Uttar Pradesh Higher Education Services
Commission (Amendment) ordinance,2014
which has since been repealed.

The petition has been rendered
infructuous. The challenge to the order of
the Special Secretary dated 6 June 2014
will not survive since that is only for
implementation of the Ordinance, 2014
which has since been repealed.

The petition is, accordingly,
dismissed.
Interim
order
shall,
in
consequence, stand vacated. There shall
be no order as to costs.

2`& bl lac/k esa eq>s ;g dgus dk
funs'k gqvk gS fd m0iz0 mPprj f'k{kk lsok
vk;ksx vf/kfu;e]1980 1⁄4;Fkkla'kksf/kr1⁄2 vf/kfu;e]
2006 dh /kkjk&31&bZ ,oa m0iz0 mPprj f'k{kk
lsok vk;ksx 1⁄4la'kks/ku1⁄2 vf/kfu;e] 2014 1⁄4m0iz0
vf/kfu;e la[;k& 22 lu~ 2014 vf/klwpuk
fnukad 26-12-20141⁄2 esa fo|eku O;oLFkkuqlkj
ekuns; f'k{kdksa ds vkesyu ds laca/k esa vko';d
dk;Zokgh 'kh"kZ izkFkfedrk ij fuEukafdr 'krksZa ,oa
izfrcU/kksa ds v/khu djkus dk d"V djsa%&
1812 INDIAN LAW REPORTS ALLAHABAD SERIES

1⁄411⁄2 mUgha ekuns; f'k{kdksa dk vkesyu
fd;k tk;sxk] ftudk p;u miyC/k fjfDr ,oa
vuqeksfnr in ij fof/k vuq:i fd;k x;k gksA

1⁄421⁄2 ekuns; f'k{kd ;w0th0lh0 }kjk
fu/kkZfjr vgZrk;sa iw.kZ djrs gksA

1⁄431⁄2 vkesyu] vkns'k fuxZr gksus gksus
dh frfFk ls izHkkoh gksxk rFkk vkesyu ij
mPprj f'k{kk lsok vk;ksx dh laLrqfr Hkh izkIr
dh tk;sxhA

1⁄441⁄2 bu f'k{kdksa dh vgZdkjh lsok
vkesyu dh frfFk ls vkadh tk;sxh] iwoZ lsok] tks
ekuns; ds vk/kkj ij gS] dks lsokfuo`fRrd ykHkksa
ds fy, vgZdkjh ugha ekuk tk;sxkA

1⁄451⁄2 Hkfo"; esa fdlh izdkj dh
ekuns;@rnFkZ fu;qfDr ugha dh tk;sxhA**

10. Section 31-E of the Act, 1980 as
amended by the U.P. Act No. 22 of 2014
w.e.f. 26.5.2014 is the enabling provision
for
absorption
which
is
reproduced
below:-

"31-E. Absorption of teacher on
honorarium. (1) Subject to the provisions
contained in Sections 12 and 13, if any
vacancy exists, which could not be filled
under the provisions of said sections, a
teacher on honorarium shall be absorbed
in the manner prescribed under sub
section (2) , who is working in grant-in-aid
college,
possessing
educational
qualifications determined by the State
Government,
receiving
honorarium,
thereby working for a minimum period of
three academic sessions and has been
working till the date of commencement of
the Uttar Pradesh Higher Education
Services Commission (Third Amendment)
Act 2006

(2)
Where
any
substantive
vacancy in the post of a teacher in a grantin-aid college is to be filled by direct
recruitment, such post shall, at the
instance of the Director, be offered by the
management to teacher on honorarium
referred to in sub-section (1).

(3) Where any teacher on
honorarium
who
has
been
offered
appointment in accordance with the
provisions of sub-section (2) fails to join
the post within the time allowed, which
shall not be less than fifteen days, his
further claim shall cease automatically.

Explanation.- For the purposes
of this section -

"teacher on honorarium" means
a person working in grant-in-aid college
and is engaged in teaching a course of
study and receiving payment from the
Funds of State aid on a fixed honorarium
appointed on a contractual basis with the
prior approval of the Director.

(4) Where the Management fails
to offer any post to a teacher on
honorarium in accordance with the
provisions of sub-section (2) within the
time specified by the Director, the
Director, may himself issue the letter of
appointment
to
such
teacher
on
honorarium
and
the
teacher
on
honorarium concerned shall be entitled
to get his salary as teacher, from the date,
he joins the post in pursuance of such
letter of appointment."

(emphasis supplied)

11. In terms of the provisions of
Section 31-E of the Act, 1980 and
Government Order dated 6.6.2014, the
Director
(Higher
Education),
U.P.,
Allahabad issued orders recommending
the respective degree colleges to offer
appointment to petitioners. One such
letter of the Director dated 18.5.2017 is
reproduced below:-

^^izs"kd]
1 All. Dr. Vijay Kumar Srivastava & Ors. Vs. State of U.P. & Ors.
1813

f'k{kk funs'kd 1⁄4mPp f'k{kk1⁄2
m0iz0]

f'k{kk
fMxzh
vFkZ&1
1⁄4fofu;ferhdj.k1⁄2

bykgkcknA

lsok esa]

izcU/kd@izkpk;Z

egkjktk cyoUr flag ih0th0
dkyst]

xaxkiqj] okjk.klhA

i=kad
fMxzh
vFkZ&11⁄4fofu1⁄2@
@2017&2018 nukad 18&05&2017

fo"k;%& m0iz0 v/;kns'k la[;k&42
lu~ 2006 fnukad 28 fnlEcj] 2006 }kjk m0iz0
mPprj f'k{kk lsok vk;ksx vf/kfu;e 1980 dh
/kkjk 313 ds LFkku ij izfrikfnr /kkjk,a 3131⁄411⁄2]
1⁄421⁄2] 1⁄431⁄2 ,ao 1⁄441⁄2 rFkk rRlEcU/kh la'kksf/kr
vf/kfu;e&2014 ds vUrZxr v'kkldh; lgk;rk
izkIr Lukrd ,ao LukrdksRrj egkfo|ky;ksa esa
f'k{kdksa ds fjDr inksa ij fuf'pr ekuns; ds
vk/kkj ij dk;Z dj jgs ekuns; f'k{kdksa dsa
vkesyu ds lEcu/k esaA

egksn;]

m0iz v/;kns'k la[;k&42 lu~
2006 fnukad 28 fnlEcj] 2006 }kjk m0iz0
mPprj f'k{kk lsok vk;ksx vf/kfu;e 1980 esa
izfrikfnr /kkjk 313 1⁄411⁄2] 1⁄421⁄2] 1⁄431⁄2 rFkk 1⁄441⁄2 rFkk
rRlEcU/kh la'kksf/kr vf/kfu;e&2014 ds v/khu
vkids egkfo|ky; esa 'kklukns'k fnukad 07-041998 esa fu/kkZfjr U;wure 'kSf{kd vgZrk ,ao of.kZr
O;oLFkk ds vUrxZr fu;qDr fuf'pr ekuns; ds
vk/kkj ij dk;Z dj jgs ekuns; f'k{kd dks
vkesyu djus gsrq laLrqr djus ds izdj.kksa ij
egkfo|ky; ,ao {ks=h; mPp f'k{kk vf/kdkjh }kjk
izLrqr ,ao vxzlkfjr fd;s x;s izekf.kd vfHkys[k
ds vk/kkj ij mijksDr v/;kns'k ds dze esa fuxZr
'kklukns'k la[;k 331@ lRrj&2& 2014&3
1⁄4191⁄2@1993 Vhlh&II fnukad 06-06-2014] ,ao
'kklukns'k la[;&8@2016 @ 274@ lRrj&2&
2016&31⁄4191⁄2 1993 Vhlh&II fnukad 02 ebZ] 2016
esa mfYyf[kr 05 'krksZa@izfrcU/kksa ds n`f"Vxr rFkk
rRlEcU/kh
'kklukns'k
la[;k&14@2016@547@lRrj&2&2016&31⁄4191⁄2
@93 Vhlh&II fnukad 30 vxLr] 2016 ,ao
'kklukns'k
la[;k&oh0vk0ih0&86@
lRrj&2&2016&31⁄4191⁄2@93 Vhlh fnukad 05
fnlEcj] 2016 ds n`f"Vxr fopkj fd;k x;kA

2& miyC/k vfHkys[kksa ds vk/kkj ij
vkids egkfo|ky; esa MkW0 fot; dqekj] ekuns;
izoDrk&bfrgkl]
txriqj
ih0th0
dkyst]
okjk.klh dks izLrj 03 esa mfYyf[kr in ds izfr
v/;kns'k esa fufnZ"V izfrcU/kksa ds v/khu rkRdkfyd
izHkko ls vkesyu gsrq laLrqfr dh tkrh gSA

3& MkW0 xksfoUn nso feJ ds
lsokfuo`fRr ls gqbZ fjfDrA

4& vkesyu dh ;g laLrqfr ek0 mPp
U;k;ky;] bykgkckn }kjk fjV ;kfpdk la[;k&
22349@2016
esa
ikfjr
vkns'k
fnukad
27&05&2016 ds vuqikyu esa dh tk jgh gS rFkk
ekuns; f'k{kd dk vkesyu ek0 mPp U;k;y;
}kjk mDr ;kfpdk esa ikfjr vfUre fu.kZ; ds
v/khu gksxkA

6& ekuns; f'k{kdksa dh vgZdkjh lsok
vkesyu dh frfFk ls ekuh tk;sxhA

7& bl lEcU/k esa ;g Hkh Li"V fd;k
tkrk gS fd ekuns; f'k{kd ds vkesyu dh ;g
laLrqfr vH;FkhZ] izkpk;Z ,ao izcU/kd rFkk {ks=h;
mPp f'k{kk vf/kdkjh }kjk mPp f'k{kk funs'kky;
dks izLrqr vfHkys[kksa ds vk/kkj ij dh x;h gSA
vr% ;fn fdlh Lrj ij vfHkys[kksa esa =qfV ik;h
tkrh gS vFkok dksbZ ?kks"k.kk vlR; gksrh gS rks
mldk
mRrjnkf;Ro
;FkkfLFkfr
rRlEcU/kh
vH;FkhZ@izkpk;Z@izcU/kd dh gksxh rFkk vkesyu
dks vfHk'kwU; dj fn;k tk;sxkA

8& vkesfyr gksus okys f'k{kd
'klkukns'k fnukad 07&04&1998 esa nh x;h
'kS{kf.kd vgZrk ,ao vU; 'krksZa dks iw.kZ djrk gks
;g lqfuf'pr dj fy;k tk,A vkesfyr f'k{kd
ds osru dk vkgj.k rc rd u fd;k tk,
tcrd fd muds 'kSf{kd vfHkys[kksa dk lEcfU/kr
'kSf{kd laLFkkvksa ls lR;kiu izkIr u gks tk,A

9& ;fn vkesfyr izoDrk fu;qfDr i=
fuxZr gksus ds 15 fnuksa ds vUnj dk;ZHkkj xzg.k
ugha djrk gS rks mudk vkesyu fujLr ekuk
tk,xkA

uksV%& ekuns; f'k{kdksa dk ;g
vkesyu vkns'k ;kfpdk la[;k&22349@2016
1⁄4MkW0 nhukukFk o 07 vU; cuke mRRj izns'k jkT;
o vU;1⁄2 ,ao ekuns; vkesyu ls lEcfU/kr ek0
1814 INDIAN LAW REPORTS ALLAHABAD SERIES
loksZPp U;k;ky;@ek0 mPp U;k;ky; esa yfEcr
vU; ;kfpdkvksa ds v/khu gksxkA ek0 U;k;ky;
ds fdlh vU;Fkk vkns'k ij ;g vkesyu Lor%
vfHk'kwU; gks tk;sxkA
Hkonh;
MkW0 1⁄4vkj0ih0 flag1⁄2
f'k{kk funs'kd1⁄4m0f'k01⁄2 m0iz0]
bykgkckn**

12. Thereafter the management offered
appointment
to
petitioners
under
the
Government Orders dated 6.6.2014 and
2.5.2016 which the petitioners voluntarily
accepted. Consequently, they were appointed
by absorption subject to conditions as provided
in the aforequoted Government Orders dated
6.6.2014 and 2.5.2016. Now, by the present
writ petition, they are challenging condition no.
4 of the aforequoted Government Orders dated
6.6.2014 and 2.5.2016 under which they came
to be appointed.

13. In brief, normal procedure for
recruitment under Sections 12 & 13 of the
Act, 1980, is that management shall
intimate vacancies to the Director in the
manner prescribed, who shall notify it to
the Commission in the prescribed manner.
The Commission
shall
hold
written
examination
and
interview
of
the
candidates and thereafter send a list to the
Director recommending such candidates
found most suitable in each subject in
order of merit. Thereafter, the Director
shall intimate to the management the name
of candidate from the list for appointment
in such vacancy by the management.
Procedure for selection of teachers has
been prescribed in the Uttar Pradesh
Higher Education Services Commissions
(Procedure for Selection of Teachers)
Regulations, 2014 framed under Section
31 of the Act, 1980.

14 The aforequoted recommendation
for absorption of the petitioners was made
by the Director pursuant to the order dated
26.5.2016 in Writ-C No. 22349 of 2016
(Dr. Deena Nath Yadav & 7 others Vs.
State of U.P. & 2 others) passed by the
Division Bench in which the judgment
dated 4.4.2008 in Writ-A No. 5210 of
2007 (Anurag Tripathi & another Vs. State
of U.P. & others) was referred and it was
held that the petitioners are part time
teachers. The operative portion of the
order dated 27.5.2016 in Dr. Deena Nath
Yadav's case (supra) is reproduced below:-

"Considering the facts that this
Court, while questioning the vires of the
Ordinance had granted an interim order
and, in order to balance the equity, we
direct the respondents that they may
proceed with the absorption of part time
teachers on such vacancies, which have
not been notified and advertised by the
Commission upto the date of issuance of
the Amending Act, 2014."

(emphasis supplied)

15. The operative portion of the
order of the Division Bench in Anurag
Tripathi's case (supra) is reproduced
below:-

"All
the
writ
petitions
are
accordingly disposed of with the following
directions :

(a)
Part-time
teachers
appointed under the Government Order
dated 17.04.1998 would continue to
function as such till regularly selected
candidates
recommended
by
the
commission joins, or in terms of the final
judgement of the Hon'ble Supreme Court
in Special Leave Petition (Civil) No. 84 of
2004 whichever is earlier.

(b) Such Part-time teachers
shall be entitled to the payment at the
rate
provided
for
under
the
1 All. Dr. Vijay Kumar Srivastava & Ors. Vs. State of U.P. & Ors.
1815
Government Order on per lecture basis
subject to the maximum prescribed,
they were not entitled to salary at par
with regular Lectures.

(c) Absorption under Section 31-E of
the Commission's Act shall not be effected in
favour of any part -time teacher till the Hon'ble
Supreme Court considers and decide the Special
Leave Petition (Civil) No.84 of 2004.

(d) Absorption,if any, of parttime teachers under Section 31-E of the
Act subsequent to the judgement of the
Hon'ble Supreme court (if it is decided in
favour of part-time teachers) would be
considered
against
such
substantive
vacancies which had not been advertised
by the commission till the enforcement of
the Act No.46 of 2006.

(e) The director of Higher
Education shall ensure that all existing
vacancies
are
requisitioned
by
the
Management /Principal of the recognized
affiliated and aided Degree College within
the
time
specified
above
and
the
commission in turn shall ensure that
regular selection are made against the said
vacancies within one year from the date
the requisition is received after following
the procedure prescribed. The Director
shall direct placement of the selected
candidates immediately thereafter. There
should be no complaint to this court that
selections could not be made by the
commission
because
of
absence
of
Chairman/other member/other facilities
being
not
made
available
by
the
state."(emphasis supplied)

16. Thus, it has always been the case
of the absorbed honorarium persons that
they
were
part
time
teachers
on
honorarium.

17. In para 38 of the writ petition, the
petitioners have alleged to have moved a
representation dated 25.9.2018 before the
respondent no. 1, a copy of which has been
filed as Annexure No. 21 in which, they
have now alleged that their period of
engagement on honorarium is to be
counted in their length of service in terms
of
Clause
10.1(f)
of
the
U.G.C.
Regulation 2010 which is reproduced
below:-

"(f) The previous appointment
was not as guest lecturer for any
duration, or an adhoc or in a leave
vacancy of less than one year duration.
Adhoc or temporary service of more than
one year duration can be counted provided
that:

(i) the period of service was of
more than one year duration;

(ii)
the
incumbent
was
appointed on the recommendation of duly
constituted Selection Committee; and

(iii) the incumbent was selected
to the permanent post in continuation to
the adhoc or temporary service, without
any break."

(emphasis supplied)

18. Perusal of the aforesaid clause shows
that it is applicable only to adhoc and temporary
appointees which fall under a different class than
the persons / petitioners who were engaged by
the management on honorarium basis per lecture
as permitted by Government Order dated
7.4.1998. These engagements were made
without recommendation of any duly
constituted Selection Committee under the
Act, 1980 as also evident from clauses 6, 7 & 8
of the Government Order dated 7.4.1998. Their
engagement was not as whole timer but as
part timer on honorarium per lecture @ Rs.
100/- subject to maximum honorarium of Rs.
5,000/- in a month.

19. In University of Rajasthan &
another Vs. Prem Lata Agrawal (2013) 3
1816 INDIAN LAW REPORTS ALLAHABAD SERIES
SCC 705 (paras 1, 9, 10, 11, 30, 31 & 44)
considered the question of qualifying
length of service for pension to the teacher
engaged on honorarium who under orders
of the Court started getting salary
equivalent to minimum pay scale of
regularly appointed Lecturers, and held as
under:-

"1. Leave granted in all the
special leave petitions. The controversy
that arises for consideration in this batch
of appeals is whether the respondents,
who were appointed to the teaching post,
namely, Assistant Professors/Lecturers in
different subjects and continued as such
for more than two decades, would be
entitled to get the benefit of pension
under
the
University
Pension
Regulations,
1990
(for
short
"the
Regulations") framed by the University of
Rajasthan which came into force with
effect from 1.1.1990, regard being had to
the language employed in Regulation 2
that deals with the scope and application
of the Regulations read with Regulations
22 and 23 that stipulates the conditions of
qualifying service and the period that is to
be counted towards pension in addition to
the fact that the University had accepted
the contribution to the Pension Fund as
defined in Regulation 3(5), despite the
stand and stance put forth by the
University that the respondents were not
regularly appointed to the posts in
question in accordance with the provisions
contained in Section 3(3) of the Rajasthan
Universities'
Teachers
and
Officers
(Selection for Appointment) Act, 1974 (for
brevity "the Act") and, hence, are not
entitled to the benefit provided under the
Regulations.

9. The learned Single Judge
referred to the regulations and took note
of the fact that she had continued in
service for a period of 20 years and her
option for grant of pension was accepted
by the university and pursuant to such
acceptance
they
deposited
their
contribution and, hence, the university was
estopped to take a somersault the stand
that she was not entitled to receive pension
under the Regulations of 1990. That apart,
the learned single Judge opined that the
nature of her appointment could not be
treated as ad hoc and temporary, regard
being had to the length of service. Being of
this view, he allowed the writ petition and
directed
the
pensionary
benefits
be
extended to her within a period of three
months after completing the formalities.

10.
Being
grieved
by
the
aforesaid order, the university preferred
Special Appeal (Writ) No. 292 of 2011.
The Division Bench, after adverting to the
facts and referring to various regulations
and the provisions of the Act, came to hold
that the action of the university was wholly
unjustified
and
arbitrary.
The
said
conclusion of the Division Bench was
founded on the base that there was default
on the part of the university in not
appointing even a single person in the
service of the universities of Rajasthan in
a regular manner for a long period; that
the university had invited the teachers to
give their option and they deposited their
contribution in the C.P.F. in the pension
scheme; that the appointments of the
teachers were not in contravention of the
provisions of the Act; and that they were
deemed to be confirmed in view of the
provisions contained in Regulation 23 of
the Regulations.

11. After arriving at the said
conclusions, the Division Bench adverted
to the issue whether the teachers were
entitled for the pensionary benefits in
terms of the regulations and eventually,
interpreting the regulations and placing
1 All. Dr. Vijay Kumar Srivastava & Ors. Vs. State of U.P. & Ors.
1817
reliance on the authorities In S.B.
Patwardhan Vs. State of Maharashtra
(1977) 3 SCC 399 and D.S. Nakara Vs.
Union of India (1983) 1 SCC 305 and
paragraph 53 of the pronouncement in
State of Karnataka Vs. Umadevi (2006) 4
SCC
1,
came
to
hold
that
the
appointments were made following due
procedure of law and further the
teachers, having been appointed in the
cadre of substantive posts, could not be
denied the pensionary benefits under the
regulations. Being grieved, the University
is in appeal by way of Special Leave
Petitions.

30. In Anuradha Mukherjee
(Smt.) & others Vs. Union of India &
others (1996) 9 SCC 59, this Court, while
dealing with the issue of seniority, opined
that when an employee is appointed de
hors the Rules, he cannot get seniority
from the date of his initial appointment but
from the date on which he is actually
selected and appointed in accordance with
the Rules.

31. In State of Haryana Vs.
Haryana Veterinary & AHTS Association
and another (2000) 8 SCC 4 while dealing
with the issue of regular service under the
Haryana Service of Engineers, Class II,
Public Works Department (Irrigation
Branch) Rules, 1970, a three-Judge Bench
observed that under the Scheme of the said
Rules, the service rendered on ad hoc
basis or stop-gap arrangement could not
be held to be regular service for grant of
revised scale of pay.

Consequently, the appeals are
allowed and the orders passed by the
High Court are set aside. However, if any
amount has been paid on any count to any
of the respondents in the appeals pursuant
to the orders passed by the High Court,
the same shall not be recovered on any
count. There shall be no order as to costs."
(emphasis supplied)

20. In Union of India & others Vs.
K.G. Radhakrishna Panickar & others
(1998) 5 SCC 111 (paras 2, 12 & 13),
Hon'ble Supreme Court considered similar
question and held as under:-

"2. These appeals raise the
question whether employees who were
initially engaged as Project Casual
Labour by the Railway Administration
and were subsequently absorbed on a
regular temporary/permanent post are
entitled to have the services rendered as
Project Casual Labour prior to 1.1.1981
counted as part of qualifying service for
the purpose of pension and other retiral
benefits.

12. In its judgment dated 8-21991 the Tribunal had held that exclusion
of period of service rendered as Project
Casual Labour before they were regularly
absorbed prior to 1.1.1981 results in such
employees
being
discriminated
as
compared to Project Casual Labour who
were employed subsequently and whose
service as Project Casual Labour prior to
absorption is counted for the purpose of
qualifying service. The said finding of the
Tribunal is based on the decision of this
Court in D.S. Nakara. In this regard, it
may be stated that the Tribunal was in
error in invoking the principle laid down
in D.S. Nakara in the present case. The
decision in D.S. Nakara has been
considered by this court in subsequent
decisions and it has been laid down that
the principle laid down in D.S. Nakara can
have application only in those cases where
there is discrimination in the matter of
existing benefit between similar set of
employees and the said principle has no
application where a new benefit is being
conferred with effect form a particular
1818 INDIAN LAW REPORTS ALLAHABAD SERIES
date. In such a case the conferment of the
benefit with effect from a particular dated
cannot be held to be violative of Article 14
of the Constitution on the basis that such a
benefit has been conferred of certain
categories of employees on the basis of
particular date. [See: Krishena Kumar Vs.
Union of India & others (1990) 4 SCC
207, State of W.B. Vs. Ratan Behari Dey
(1993) 4 SCC 62 and State of Rajasthan
Vs.
Sevanivatra
Karamchari
Hitkari
Samiti (1995) 2 SCC 117.] In the present
case, the benefit of counting of service
prior
to
regular
empowerment
as
qualifying service was not available to
casual labour. The said benefit was
granted to Open Line Casual Labour for
the first time under order dated October
14, 1980 since Open Line Casual Labour
could be
treated
as
temporary
on
completion of six months' period of
continuous service which period was
subsequently reduced to 120 days under
Para 2501

(b) (i) of the Manual. As regards
Project Casual Labour this benefit of
being treated as temporary became
available only with effect from 1.1.1981
under the scheme which was accepted by
this court in Inder Pal Yadav. Before the
acceptance of that scheme the benefit of
temporary status was not available to
project Casual Labour. It was thus a new
benefit which was conferred on Project
Casual Labour under the scheme as
approved by this court in Inder Pal Yadav
and on the basis of this new benefit project
casual Labour became entitled to count
half of the Service rendered as Project
Casual Labour on the basis of the order
dated October 14, 1980 after being treated
as temporary on the basis of the scheme as
accepted in Inder Pal Yadav. We are,
therefore, unable to uphold the judgment
of the Tribunal dated February 8, 1991
when it holds that service rendered as
Project Casual Labour by employees who
were
absorbed
on
regular
permanent/temporary
posts
prior
to
1.1.1981 should be counted for the
purpose of retiral benefits and the said
judgment as well as the judgment in
which the said judgment has been
followed have to be set aside. The
judgements in which the Tribunal has
taken a contrary view have to be affirmed.

13. In the result, the appeals
filed by the Railway Administration are
allowed and the judgments of the Tribunal
impugned in these appeals are set aside.
The Appeals arising out of Special Leave
Petitions (C) Nos. 26790 of 1995 and 3423
of 1997 filed by the employees are
dismissed. No order as to costs."

Estoppel:

21. It is settled law that a person
cannot challenge the very source i.e.
Statute, Rules or the Government Orders
under which he was appointed. That apart,
the appointment of the petitioner by
absorption is an exception to the normal
Rule of Appointment in Government
service which includes reservation also.
Therefore, they cannot be allowed to
challenge
that
condition
of
their
appointment by absorption which they find
unfavourable to them while retaining the
favourable part. The very source under
which they came to be appointed, either
survives or perishes.

22. The petitioners have elected to
accept their appointments by absorption
under the aforequoted Government Orders
dated
6.6.2014
and
2.5.2016.
Their
appointment is based on the doctrine of
election which is Rule of estoppel which
postulates that no party can accept and
1 All. Dr. Vijay Kumar Srivastava & Ors. Vs. State of U.P. & Ors.
1819
reject the same instrument and that 'a
person cannot say at one time that a
transaction is valid and thereby obtain
some advantage to which he could only be
entitled on the footing that it is valid and
then turn round and say that it is void for
the purpose of securing some other
advantage.'

23. As per Halsbury's Laws of
England
(4th
Edition)
Vol.
16
(Paragraph
1508),
after
taking
an
advantage under an order a party may be
precluded from saying that it is invalid
and asking to set it aside.

24. In the case of Joint Action
Committee
of
Air
Line
Pilots'
Association of India (ALPAI) and
others v. Director General of Civil
Aviation and others, (2001) 5 SCC 435
(Paragraph-12), Hon'ble Supreme Court
referred to its earlier judgments in the case
of Babu Ram alias Durga Prasad v.
Indra Pal Singh, 1998(6) SCC 358, P.R.
Deshpande v. Maruti Balaram Haibatti,
1998(6)
SCC
507
and
Mumbai
International Airport Private Limited v.
Golden Chariot Airport and another,
2010 (10) SCC 422 and held that the
doctrine of election is based on the rule of
estoppel. The doctrine of estoppel by
election is one of the species of estoppel in
pais (or equitable estoppel) which is a rule
in equity. By that rule, a person may be
precluded by his actions or conduct or
silence when it is his duty to speak, from
asserting a right which he otherwise would
have had.

25.