# Durga Ji (P.G.) College Chandeswar, Azamgarh & Anr v. Ambrish Kumar Gond & Ors

- **Citation:** (2024) 2 ILRA 750
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-06
- **Case number:** J. Special Appeal Defective No. 791 of 2023
- **Bench:** Ashwani Kumar Mishra, Syed Qamar Hasan Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/durga-ji-p-g-college-chandeswar-azamgarh-anr-v-ambrish-kumar-gond-ors-51472
- **Pages:** 6

## Headnote

A. Service Law - Appointment of Class-III
Employees - Validity of Selection Process
- Appellants challenged the reinSt.ment of four
Class-III employees (Lab Assistants, Routine
Clerk, Library Clerk) whose appointments were
cancelled due to the participation of an
Officiating Principal in the selection committee
instead of the regular Principal - Held, the
regular Principal was under suspension, and the
Officiating Principal, Dr. Phool Chandra Singh,
was duly authorized to participate in the
recruitment process - The selection committee
was validly constituted under the statutes of
Veer Bahadur Singh Purvanchal University, and
the objection to the Officiating Principal's
participation was baseless - Cancellation of
appointments
by
the
Director
and
Authorized Controller was erroneous, as no
disciplinary
enquiry
or
opportunity
of
hearing was provided, violating natural
justice. (Paras 4, 9, 10, 11, 12)

B. Service Law - Natural Justice -
Cancellation
of
Appointments
-
The
appointments of Class-III employees, approved
by the Regional Higher Education Officer on
25.11.2004, were cancelled without conducting
a
disciplinary
enquiry
or
providing
an
opportunity of hearing - Held, such cancellation
was impermissible and arbitrary, as it lacked
procedural fairness - Learned Single Judge
rightly set aside the cancellation orders dated
26.3.2009 (Director), 2.6.2010 (Principal), and
18.6.2010 (Authorized Controller) - ReinSt.ment
of employees upheld, as the selection process
2 All. C/M, Sri Durga Ji (P.G.) College Chandeswar, Azamgarh & Anr. Vs. Ambrish Kumar
 Gond & Ors.
751
was valid and cancellations were not based on
any substantive grounds. (Paras 5, 6, 12)

C. Service Law
-
Back Wages and
Continuity of Service - Employees sought
back wages for the period 2010-2023, during
which they were not allowed to work due to
wrongful cancellation of their appointments -
Held, denial of back wages was not illegal, as
employees did not work during this period -
However, employees are entitled to continuity of
service and notional fixation of salary from
2004, ensuring uninterrupted service benefits -
Authorities
directed
to
reinSt.
employees
forthwith and fix salaries accordingly, without
back wages for the unworked period. (Paras 6,
13, 14)

Special Appeals (Nos. 791, 790, 803 of
2023) by Committee of Management
Dismissed - Special Appeal (No. 84 of
2024)
by
Employees
Disposed
with
Directions for ReinSt.ment and Continuity
of Service.

## Text

750 INDIAN LAW REPORTS ALLAHABAD SERIES
person and has done C-Grade course of
computer in June, 2017 i.e. before submitting an
online application for appointment.

21. Thus, the explanation given by the
appellant that he has no knowledge about the
online filling form and he gave all the relevant
information/documents to the person who filled
his online form and inadvertently error crept in by
the person filling the application form regarding
non pendency of criminal case against him, cannot
be accepted.

22. Thus, considering conduct of the
appellant and in light of the law laid down by the
Hon'ble Apex Court in Avtar Singh (supra) and
Rajya Vidyut Prasaran Nigam Ltd. (supra), it
can be concluded that the appellant deliberately
made concealment of fact regarding pendency of
criminal case in his application form.

23. Considering the law laid down by the
Hon'ble Apex Court in the aforesaid cases, and in
the facts and circumstances of the case, we do not
find any illegality or irregularity in the impugned
order 18.9.2023 passed by the learned Single
Judge in WRIT - A No. - 15566 of 2023.

24. There is no merit in the Special Appeal.
It is accordingly dismissed.
----------
(2024) 2 ILRA 750
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.02.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SYED QAMAR HASAN RIZVI,
J.

Special Appeal Defective No. 791 of 2023
Connected with
Special Appeal Defective No. 790 of 2023
And
Special Appeal Defective No. 84 of 2024
And
Special Appeal Defective No. 803 of 2023

C/M,
Sri
Durga
Ji
(P.G.)
College
Chandeswar, Azamgarh & Anr.
 ...Appellants
Versus
Ambrish Kumar Gond & Ors.
 ...Respondents

Counsel for the Appellants:
Sri Ravindra Nath Yadav, Sri Akhilesh
Kumar Yadav

Counsel for the Respondents:
C.S.C., Sri Alok Mishra

A. Service Law - Appointment of Class-III
Employees - Validity of Selection Process
- Appellants challenged the reinSt.ment of four
Class-III employees (Lab Assistants, Routine
Clerk, Library Clerk) whose appointments were
cancelled due to the participation of an
Officiating Principal in the selection committee
instead of the regular Principal - Held, the
regular Principal was under suspension, and the
Officiating Principal, Dr. Phool Chandra Singh,
was duly authorized to participate in the
recruitment process - The selection committee
was validly constituted under the statutes of
Veer Bahadur Singh Purvanchal University, and
the objection to the Officiating Principal's
participation was baseless - Cancellation of
appointments
by
the
Director
and
Authorized Controller was erroneous, as no
disciplinary
enquiry
or
opportunity
of
hearing was provided, violating natural
justice. (Paras 4, 9, 10, 11, 12)

B. Service Law - Natural Justice -
Cancellation
of
Appointments
-
The
appointments of Class-III employees, approved
by the Regional Higher Education Officer on
25.11.2004, were cancelled without conducting
a
disciplinary
enquiry
or
providing
an
opportunity of hearing - Held, such cancellation
was impermissible and arbitrary, as it lacked
procedural fairness - Learned Single Judge
rightly set aside the cancellation orders dated
26.3.2009 (Director), 2.6.2010 (Principal), and
18.6.2010 (Authorized Controller) - ReinSt.ment
of employees upheld, as the selection process
2 All. C/M, Sri Durga Ji (P.G.) College Chandeswar, Azamgarh & Anr. Vs. Ambrish Kumar
 Gond & Ors.
751
was valid and cancellations were not based on
any substantive grounds. (Paras 5, 6, 12)

C. Service Law
-
Back Wages and
Continuity of Service - Employees sought
back wages for the period 2010-2023, during
which they were not allowed to work due to
wrongful cancellation of their appointments -
Held, denial of back wages was not illegal, as
employees did not work during this period -
However, employees are entitled to continuity of
service and notional fixation of salary from
2004, ensuring uninterrupted service benefits -
Authorities
directed
to
reinSt.
employees
forthwith and fix salaries accordingly, without
back wages for the unworked period. (Paras 6,
13, 14)

Special Appeals (Nos. 791, 790, 803 of
2023) by Committee of Management
Dismissed - Special Appeal (No. 84 of
2024)
by
Employees
Disposed
with
Directions for ReinSt.ment and Continuity
of Service.

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.
&
Hon'ble Syed Qamar Hasan Rizvi, J.)

1. Delay in filing of the appeals has
been explained to the satisfaction of the
Court. Applications are allowed. Delay in
filing of appeals is condoned.

2. These four appeals are in respect of
appointments offered on Class-III posts to
four Class-III employees of Shri Durga Ji
Postgraduate
College
Chandeshwar,
Azamgarh. The writ petitions filed by the
four
Class-III
employees
have
been
allowed by the learned Single Judge and
they
have
been
held
entitled
to
reinstatement without back wages. Since all
the appeals have been heard together and
common questions of fact and law are
involved, as such, with the consent of
learned counsel for the parties all the four
appeals are being decided by this common
judgment.

3. Shri Durga Ji Postgraduate College
Chandeshwar,
Azamgarh
(hereinafter
referred to as the 'institution') is duly
recognized
educational
institution,
affiliated
to
Veer
Bahadur
Singh
Purvanchal University, Jaunpur. It is
governed by the provisions of the U.P.
State Universities Act, 1973, as well as the
statutes of the Purvanchal University. In the
concerned
institution
process
of
recruitment was initiated on the post of Lab
Assistant
and
Library
Clerk.
An
advertisement was issued by the institution
for appointments to be made on 3 posts of
Lab Assistant, one of which was reserved
for Scheduled Castes candidate; 1 post of
Routine Clerk and 3 posts of Class-IV
employees. The advertisement was issued
by the then Manager Kanhaiya Singh as
well as Dr. Phool Chandra Singh, who was
the Officiating Principal of the institution.
The selection committee was constituted
for
appointment
to
Class-III
posts
consisting of the Officiating Principal Dr.
Phool Chandra Singh. Bharat Singh and
Manoj Kumar Yadav were appointed as
Routine Clerk; while Satyendra Kumar
Singh was appointed as Library Clerk.
Ambarish Kumar Gond, and Ravindra were
appointed as Lab Assistant. Certain other
persons were appointed on Class-IV post.
These appointments were approved by the
Regional
Higher
Education
Officer,
Varanasi on 25.11.2004. The candidates,
who were duly appointed, started working
after their appointments were approved by
the Regional Higher Education Officer and
also started receiving salary. No issue in
that regard was apparently raised.

4. An Authorized Controller came to
be appointed in the institution in January,
752 INDIAN LAW REPORTS ALLAHABAD SERIES
2008. It is thereafter that some doubts were
raised with regard to legality of the
appointments offered to the aforesaid
persons on the ground that regular Principal
of the institution had not participated in the
selection
proceedings
and
that
the
Officiating Principal had no right to take
part in such proceedings.

5. It appears that the Regional Higher
Education Officer proposed cancellation of
the appointments offered to Class-III
employees,
wherein
the
Officiating
Principal Dr. Phool Chandra Singh had
participated as a member of the Selection
Committee.
The
Regional
Higher
Education Officer, nevertheless, sought
guidance
from
the
Director,
Higher
Education, U.P. The Director, Higher
Education
on
26.3.2009
directed
cancellation of the appointment of such
employees. In compliance of the orders
passed by the Director, the Principal of the
institution passed an order on 2.6.2010
suspending the payment of salary of the
concerned employees. The Authorized
Controller subsequently passed an order on
18.6.2010 cancelling the appointments
offered to the Class-III employees in
compliance of the orders passed by the
Director on 26.3.2009. The aforesaid orders
came to be challenged before this Court in
separate writ petitions filed by the
concerned employees.

6. Writ Petition No.49802 of 2010
came to be filed by Bharat Singh, who was
appointed as Routine Clerk. Writ Petition
No.54687 of 2010 was filed by Satendra
Kumar Singh, who was appointed as
Library Clerk. Writ Petition No.47780 of
2010 came to be filed by Ambarish Kumar
Gond and Ravindra. The writ petitions
were initially dismissed by learned Single
Judge, but those orders were reversed in
appeal on the ground that facts have not
been correctly adjudicated. The orders
passed in Special Appeal No.1748 of 2012
filed by Ambarish Kumar Gond and
another has been produced before us, which
would go to show that the Division Bench
was of the view that facts have not been
correctly appreciated by the learned Single
Judge, and therefore the dismissal of writ
petitions was not proper. The special
appeals were, consequently, allowed and
the matters were remitted back for a fresh
consideration of cause. It is pursuant to
such orders passed in the year 2013 by the
Division Bench that the abovenoted three
writs have now been finally decided by the
learned Single Judge vide orders dated
25.4.2023 and 22.5.2023. Learned Single
Judge has come to the conclusion that
cancellation of appointments offered to
Class-III employees was not based on any
proper enquiry report and opportunity of
hearing has also been denied to such
persons. It is for this reason that the writs
filed by Class-III employees have been
allowed. They have been held entitled to
reinstatement and continuity in service.
Salary, however, has been denied to them
on the ground that they have admittedly not
worked from 2010 to 2023. Aggrieved by
these orders of learned Single Judge,
Special Appeal Defective Nos.791 of 2023,
790 of 2023 and 803 of 2023 have been
filed by the Committee of Management,
whereas on behalf of Class-III employees
Ambarish Kumar Gond and Ravindra,
Special Appeal Defective No.84 of 2024
has been filed, insofar as back wages have
been denied to them.

7. We have heard Sri R.N. Yadav for
the Committee of Management, whereas
Sri V.K. Singh, learned Senior Counsel
assisted by Sri S.M. Mishra has been heard
on behalf of Satendra Kumar Singh. Bharat
2 All. C/M, Sri Durga Ji (P.G.) College Chandeswar, Azamgarh & Anr. Vs. Ambrish Kumar
 Gond & Ors.
753
Singh and two appellants Ambarish Kumar
Gond and Ravindra are represented by Sri
Alok Mishra. We have examined the
materials placed on record.

8. It is undisputed that the institution
is a recognized institution and certain
vacancies of Class-III and Class-IV posts
had
arisen
in
the
institution.
The
advertisement was duly published in that
regard, which is on record of Special
Appeal Defective No.791 of 2023 at page
158. The advertisement has been issued
jointly by the Manager Kanhaiya Singh and
the Officiating Principal Dr. Phool Chandra
Singh. Pursuant to this advertisement
selection committee has been constituted
and all four Class-III employees were duly
appointed. Their appointment was also
approved
by
the
Regional
Higher
Education Officer, Varanasi on 25.11.2004.
These employees started working and
receiving salary from State Exchequer.
There is no denial of such facts in any of
the appeals.

9. The dispute with regard to
appointments
offered
to
Class-III
employees originated on the report of
Regional Higher Education Officer, as per
which the selection committee itself was
flawed, since regular Principal of the
institution was not associated in issuing the
advertisement nor was he a member of the
selection committee. This is the only
objection on which the appointments
offered to Class-III employees were set
aside. In such view of the matter, it would
be necessary to examine as to whether a
valid person had participated in the
selection proceedings as Principal or not?

10. It is undisputed that Dr. Durga
Prasad Dwivedi was the Principal of the
institution. He was placed under suspension
by the Committee of Management on
3.9.2024. The suspension of Dr. Durga
Prasad Dwivedi was stayed by the Vice
Chancellor on 19.10.2004. On 16.12.2004
the suspension order was set aside by the
Vice
Chancellor.
The
order
dated
16.12.2004 came to be challenged by the
Committee of Management before a
Division Bench of this Court in Writ
Petition No.55955 of 2004. The Division
Bench of this Court quashed the order
passed by the Vice Chancellor after holding
that he had no jurisdiction to set aside the
suspension of the Principal. The suspended
Principal Dr. Durga Prasad Dwivedi
thereafter filed Writ Petition No.51603 of
2005 challenging his suspension. This writ
petition was disposed of after holding that
in view of the previous order passed by the
Co-ordinate
Bench
in
Writ
Petition
No.55955 of 2004, there was no occasion
for this Court to interfere with the order of
suspension. The enquiry, however, was
directed to be concluded within a period of
three months.

11. The order of the Division Bench
dated 3.1.2005 in Writ Petition No.55955
of 2004 has attained finality. Once that be
so, it remains undisputed that regular
Principal Dr. Durga Prasad Dwivedi
continued under suspension. The plea taken
by the educational authority and the
Committee of Management that Dr. Durga
Prasad
Dwivedi
ought
to
have
participated in the recruitment as the
Principal of the institution is clearly
impermissible. A suspended Principal
cannot take part in the recruitment
proceedings, nor can he be expected to
form part of the selection committee.
The objection taken by the Committee
of
Management
as
well
as
the
educational authorities in this regard is,
therefore, found bereft of merits.
754 INDIAN LAW REPORTS ALLAHABAD SERIES

12. It is otherwise undisputed that Dr.
Phool Chandra Singh was authorized to
officiate as Principal and his signatures
were attested. The officiation of Dr. Phool
Chandra Singh as Principal has not been
challenged by anyone. It is undisputed
that Dr. Phool Chandra Singh had
participated
in
the
recruitment
exercise and was also a member of the
selection
committee.
Being
the
Officiating Principal he was entitled
to
be
a
part
of
the
selection
committee, since the statutes of the
University contemplates a selection
committee for appointment to ClassIII post to consist of Principal. As the
regular
Principal
was
under
suspension, the Officiating Principal
had to take part in such proceedings.
We find that there was absolutely no
occasion for anyone to doubt the
recruitment of Class-III employees on
the ground that an incompetent person
had participated in the recruitment
proceedings, as the Principal. The
educational authorities as well as
Authorized Controller clearly fell in
error in doubting the correctness of
the
recruitment
proceeding
culminating in appointment of ClassIII
employees,
who
were
duly
approved by the Regional Higher
Education Officer. We otherwise find
substance in the reasoning assigned by
learned Single Judge to interfere with
the order of the authorities, inasmuch
as at no stage, any opportunity of
hearing was given to the selected
employees. No disciplinary enquiry
was otherwise held. The services of
Class-III employees, who were duly
appointed
and
approved
by
the
educational authorities, could not have
been
set
aside,
merely
on
a
misconceived
apprehension
that
selection committee was incompetent.
We, therefore, fully endorse the view
taken by the learned Single Judge that
the cancellation of appointment of
Class-III
employees
was
impermissible. Learned Single Judge,
therefore, has rightly set aside the
order passed by the Director dated
26.3.2009 as well as the consequential
orders passed by the Principal dated
2.6.2010 and the order passed by the
Authorized
Controller
dated
18.6.2010.
The
Special
Appeal
Defective Nos.791 of 2023, 790 of
2023 and 803 of 2023 filed by the
Committee of Management, in that
regard, are dismissed.

13. So far as the claim for back
wages put forth by the two employees
are concerned, we find that they have
not worked since 2010. Although we
find substance in the argument of Sri
Alok Mishra that it was for no fault of
these employees that they were not
allowed to work, yet, in the facts of
the case we find that denial of back
wages to these two employees cannot
be said to be illegal or arbitrary. All
these employees, however, would be
entitled to continuity in service and
their salary etc. would be notionally
fixed by granting them the benefit of
uninterrupted continuance since their
appointment in the year 2004 without any
back wages for the period 2010 to 2023. The
authorities shall ensure that all the four ClassIII employees would be allowed to resume
their duties, forthwith, if it has not already
been done, and they would be entitled to
salary in terms of the above directions.

14. Subject to the observations
made above, Special Appeal Defective
No.84 of 2024 stands disposed of.
2 All. Food and Civil Supply Pensioniers Welfare Association, Meerut Vs. State of U.P. & Ors. 755
----------
(2024) 2 ILRA 755
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.02.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SYED QAMAR HASAN RIZVI,
J.

Special Appeal No. 818 of 2022

Food and Civil Supply Pensioniers Welfare
Association, Meerut ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri
Kumar
Ashutosh
Srivastava,
Sri
Bhupendra Pratap Singh

Counsel for the Respondents:
C.S.C.

A. Service Law - Implementation of Sixth
Pay Commission - Food and Civil Supply
Department
-
Appellant-association,
representing retired employees of the Food and
Civil
Supply
Department
(2008-2011),
challenged the rejection of their representation
seeking implementation of the Sixth Pay
Commission report notionally from 1.1.2006 -
Held, the Sixth Pay Commission report was
uniformly
implemented
across
all
St.
departments, including Food and Civil Supply,
from 1.1.2006 vide Government Order dated
8.12.2008 - No illegality or perversity shown in
the finding of the learned Single Judge -
Appellant's primary grievance regarding nonimplementation of the Sixth Pay Commission
from 1.1.2006 rejected. (Paras 3, 8)

B. Service Law - Upgradation of Pay Scale
- Rectification of Anomalies - Appellant
sought retrospective application of upgraded
pay scales (effective 30.6.2011) from 1.1.2006,
alleging arbitrariness - Held, the upgradation of
pay scales, based on the Tenth Pay Committee
Report, addressed anomalies considering work
performed
and
equivalence
with
other
departments
-
This
potential
claim
was
recognized only on 30.6.2011, and benefits
were rightly granted prospectively from that
date - No existing right to upgraded pay existed
prior to 30.6.2011, rendering retrospective
application untenable. (Paras 4, 9, 10, 11)

C. Service Law - Potential Claims - Prospective
Application - The claim for upgraded pay scales
was a potential claim, not based on pre-existing
rights, and required determination through
appropriate proceedings - Held, such claims are
ordinarily implemented prospectively from the
date of recognition (30.6.2011) - No evidence
showed
that
the
appellant's
claim
was
recognized earlier or that their circumstances
mirrored Central Government employees -
Learned Single Judge's refusal to interfere with
the St.'s order upheld as no illegality found.
(Paras 10, 11, 12)

Special Appeal Dismissed - No Merit
Found in Challenge to Single Judge's
Order.

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.
&
Hon'ble Syed Qamar Hasan Rizvi, J.)

1. Appellant before this Court is the
Association of Food and Civil Supply
Pensioners, which is aggrieved by the
judgment of the learned Single Judge dated
4.10.2021,
passed
in
writ
petition
nos.68856 of 2015 and 57952 of 2014.

2. The appellant-association by filing
the writ petition had primarily challenged
the order passed by the Principal Secretary,
Department of Food and Civil Supply,
State of U.P., Lucknow dated 12.2.2015,
whereby representation made by the
appellant-association
was
rejected.
A
further prayer has been made to issue a writ
of mandamus commanding the respondents
to implement the sixth pay commission
report from 1.12.2008 notionally from