# India, New Delhi and others v. Jagat Narain

- **Citation:** (2012) 2 ILRA 732
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-07
- **Case number:** Civil Misc. Writ Petition No. 6825 of 2004
- **Bench:** Rakesh Tiwari, Arvind Kumar Tripathi (Ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/india-new-delhi-and-others-v-jagat-narain-42262
- **Pages:** 6

## Headnote

Constitution
of
India,
Article
226Appointment/Regularization-petitioner
worked on post of oil engine driver-for
264 days-also appeared in Trade Testclaim of regularization based on circular
dated
27.11.1992-providing
regularization of those casual worker
who were engaged prior to 07.06.1988
and are in services on dated 07.04.1991admittedly disengaged from 16.11.1984not coming within preview of one time
regularization scheme-not entitled for
any relief.

Held: Para 21 and 23

It is apparent from the above OM that
consideration of casual workers for
regularization was only as a one time
measure,
in
consultation
with
the
Director
General
Employment
and
Training, Ministry of Labour. Since the
petitioner was not in service on 8th April,
1991, when this letter was issued he had
no
right
of
regularization.
2 All] Ashok Kumar V. Union of India Thru. Secy. Min. of Defence & Others
733
As in the instant case, the petitioner has
not been able to show that he has any
legal right to be permanently absorbed
and he was not eligible on the date one
time concession was granted to such
employee who were working as such the
petition deserves to be dismissed.
Case law discussed:
JT 2006 (4) SC 420; Civil Misc. Writ Petition
No. 40713 of 2002 Union of India through
Secretary, Ministry of Defence, Government of
India, New Delhi and others vs. Jagat Narain
Mishra and another decided on 18.01.2008 ;
Writ-A No. 12912 of 2006 Union of India
through Secretary, Ministry of Defence, New
Delhi and others vs. Shamshad Husain and
another decided on 13.05.2010

## Text

732 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

(iii) unmarried daughters, unmarried
adopted daughters, widowed daughters
and widowed daughter-in-law;

(iv) unmarried brothers, unmarried,
sisters and widowed mother dependent on
the deceased Government servant, if the
deceased
Government
servant
was
unmarried;

(v) aforementioned relations of such
missing Government servant who has
been declared as "dead" by the competent
court;

provided that if a person belonging to
any of the above mentioned relations of the
deceased Government servant is not
available or is found to be physically and
mentally unfit and thus ineligible for
employment in Government service, then
only in such situation the world "family"
shall also include the grandsons and the
unmarried granddaughters of the deceased
Government servant dependent on him."

8. In view of the above legal
proposition as well as the amendment in the
Dying in Harness Rules, 1974 to include the
widowed daughter-in-law in the definition
of the term 'family', this writ petition is
allowed and the impugned order dated
15.1.1998 passed by the Basic Shiksha
Adhikari,
Fatehpur
is
quashed.
The
petitioner shall be treated to be in service
with
all
consequential
benefits.
The
petitioner will also be entitled to the arrears
of salary which shall be paid to her within
two months from the date a certified copy
of this order is received by the respondent
no. 4-Basic Shiksha Adhikari, Fatehpur.

9. There shall be no order as to cost.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.05.2012

BEFORE
THE HON'BLE RAKESH TIWARI, J.
THE HON'BLE ARVIND KUMAR TRIPATHI (II), J.

Civil Misc. Writ Petition No. 6825 of 2004

Ashok Kumar

 ...Petitioner
Versus
Union of India Thru. Secy. Min. of
Defence & Others
 ...Respondents

Counsel for the Petitioner:
Sri C.P.Srivastava
Sri Anubhav Chandra

Counsel for the Respondents:
S.S.C.
Sri Rakesh Sinha
Sri B.K. Singh Raghuvanshi
Sri K.C. Sinha

Constitution
of
India,
Article
226Appointment/Regularization-petitioner
worked on post of oil engine driver-for
264 days-also appeared in Trade Testclaim of regularization based on circular
dated
27.11.1992-providing
regularization of those casual worker
who were engaged prior to 07.06.1988
and are in services on dated 07.04.1991admittedly disengaged from 16.11.1984not coming within preview of one time
regularization scheme-not entitled for
any relief.

Held: Para 21 and 23

It is apparent from the above OM that
consideration of casual workers for
regularization was only as a one time
measure,
in
consultation
with
the
Director
General
Employment
and
Training, Ministry of Labour. Since the
petitioner was not in service on 8th April,
1991, when this letter was issued he had
no
right
of
regularization.
2 All] Ashok Kumar V. Union of India Thru. Secy. Min. of Defence & Others
733
As in the instant case, the petitioner has
not been able to show that he has any
legal right to be permanently absorbed
and he was not eligible on the date one
time concession was granted to such
employee who were working as such the
petition deserves to be dismissed.
Case law discussed:
JT 2006 (4) SC 420; Civil Misc. Writ Petition
No. 40713 of 2002 Union of India through
Secretary, Ministry of Defence, Government of
India, New Delhi and others vs. Jagat Narain
Mishra and another decided on 18.01.2008 ;
Writ-A No. 12912 of 2006 Union of India
through Secretary, Ministry of Defence, New
Delhi and others vs. Shamshad Husain and
another decided on 13.05.2010

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard counsel for the parties and
perused the record.

2. This Civil Misc. Writ Petition has
been filed by Ashok Kumar S/o Chottey
Lal, R/o 101, R.A. Bazar, Post Office-
GPO, Allahabad, for quashing the order
dated 19th December 2002 (Annexure 1 to
the
writ
petition),
by
which
the
representation
of
the
petitioner
for
appointment on the post of Oil Engine
Driver, was rejected. It was moved vide
order of Central Administrative Tribunal,
Allahabad dated 20th September, 2002, in
O.A. No. 792 of 1996 filed by the
petitioners Ashok Kumar and others vs.
Union of India and others.

3. Brief facts of the case are that the
petitioner had worked for a period of 264
days
under
the
respondent
No.
3,
Commander Works Engineer, Military
Engineering Services, Allahabad as Oil
Engine Driver on casual basis. He received
letter dated 21st November, 1987 to appear
in trade test for appointment on the post of
Oil Engine Driver, pursuant to which he
appeared in the trade test and was selected,
but his appointment was postponed for want
of age relaxation on the ground that he was
slightly over aged at the time of trade test
and selection.

4. After some time of the declaration
of the result, a ban was imposed by the
Government on recruitment which was
lifted in the year 1994 when the respondents
decided that such casual workers as the
petitioner who was initially sponsored
through
Employment
Exchange
and
recruited having completed more than 240
days should be offered appointment against
existing vacancies. After lifting of the ban
on recruitment, petitioner again approached
the office of the respondent No.3 for his
appointment and submitted a representation
dated 24th April, 1995.

5. The office of the respondent No. 3
appears to have informed the petitioner that
his name has been sent to the higher
authorities for relaxation of age and he will
be appointed as soon as the relaxation is
granted the Central Government, through
Secretary, of Defence, Raksha Bhawan,
New Delhi and the Engineer in Chief
Military Engineering Services, Allahabad.

6. The case of the petitioner was
wrongly forwarded to respondent No. 1 and
2 for age relaxation because the crucial date
for determining the age limit should be the
closing date for receipt of application from
from candidates. The petitioner then
preferred Original Application no. 792 of
1996, Ashok Kumar and others vs. Union of
India and others, before the Central
Administrative
Tribunal,
Additional
Branch, Allahabad (hereinafter referred to
as 'CAT') on 19th July, 1996.
734 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

7. The aforesaid Original Application
was contested by the respondents and the
CAT, after considering the pleading of
parties,
the
documentary
evidences
available on record and the arguments
advanced on behalf of the parties, directed
the respondent to consider the case of the
applicant and to pass a reasoned and
speaking order within three months from
the date of receipt of a copy of the aforesaid
judgement dated 20th September, 2002
keeping in view the earlier judgement
passed by it in O.A. No. 892 OF 1991 and
O.A. No. 893 of 1991.

8. In view of the aforesaid, respondent
no. 3 is allegedly to have passed an arbitrary
order rejecting the claim of the petitioner
vide judgment dated 20th September, 2002.
Respondent No. 3 has rejected the claim of
the petitioner who was not at parity to the
cases of Awadh Kishore vs. Union of India
and others and Jeet Narain and others vs.
Union of India and others decided by the
Central Administrative Tribunal in O.A.
No. 892 of 1991 and O.A. No. 893 of
1991.The claim of the petitioner was also
rejected on the ground that he has filed
original application in the year 1996, which
was barred by limitation.

9. Respondents have filed a counter
affidavit alleging that the above civil misc.
writ petition relates to regularization of
casual services rendered by the petitioner
during the year 1983-84 in the capacity of
Oil Engine Driver under Garison Engineer
(Air Force) Bamrauli and Garison Engineer
(East) Allahabad. Respondents No.3 who
looks after the supply of water/electricity
construction and maintenance of buildings
roads, and of furniture for the troops located
in the area; that due to shortage of regular
staff, certain Oil Engine Drivers were
employed for specific work for limited
period on need basis not exceeding 89 days
in one spell to meet the emergent
requirement of such works for troops and
on completion of the specified period of
work,
the
such
casual
employment/
engagement automatically comes to an end.
Employees so engaged do not have any lien
or right for further employment.

10. It is averred that the workers
Union had represented to Army Headquarter with regard to providing regular
appointment to such casual workers.
Pursuant thereof the Engineer-in-Chief of
the Branch directed vide his letter dated 27
November, 1992 to lower formations for
examining the cases of all casual workers
fulfilling the following criteria and for
submission of proposals for consideration of
their cases for regular appointment by the
Ministry of defence;

1. "Casual workers who had been
initially inducted through employment
exchange.

2. Casual workers who had worked for
more than 240 days in two consecutive
calender year and 180 days in one year."

11. Counsel for the petitioner on the
basis of the above directions submits that
the name of the petitioner along with all the
eligible casual employees were forwarded
to higher authorities for consideration.
Subsequently the Chief Engineer Central
Command, Lucknow, vide letter no.
901407/1/1518/EIC (2) dated 30.05.1994,
intimated that cases for regularization of
casual personnel had been referred to the
Ministry of Defence, which had rejected the
proposal
on
the
ground
that
policy/instructions
do
not
permit
regularization of services of casual workers,
who had been discharged earlier prior to
2 All] Ashok Kumar V. Union of India Thru. Secy. Min. of Defence & Others
735
issue of DOPT office memorandumNo.
49019/2/86-Estt (C) dated 07.06.1988.

12. In the instant case, the petitioner
was disengaged from services with effect
from 16th November, 1984. As the case of
the petitioner did not fall within the ambit of
policy decision of Government of India,
Department of Personnel Public Grievances
and pension and department of personnel
and training as well as O.Ms. dated
07.06.88 and 08.04.91 the writ deserves
dismissal. The office memorandum dated
08.04.91 provides that casual workers
recruited before 07.06.88 and who were in
service on the date of issue of the
instructions
i.e.
08.04.1911
may
be
considered for regular appointment.

13. Reliance has been placed by him
on paragraph 43 of the judgment rendered
in Secretary, State of Karnataka and
others vs. Umadevi and others JT 2006 (4)
SC 420 wherein the Apex Court held that a
temporary employee cannot seek a writ of
mandamus to compel the authorities to
absorb or regularize them in service unless
it is shown by them that legal duty is
imposed by some statute in this regard or
they have a legal right in this regard under
any rule framed under such statute.

" 43. Normally, what is sought for by
such temporary employees when they
approach the Court, is the issue of a writ of
mandamus directing the employer, the State
or its instrumentalities to absorb them in
permanent service or to allow them to
continue. In this context, the question arises
whether a mandamus could be issued in
favour of such persons. At this juncture, it
will be proper to refer to the decision of the
Constitution Bench of this Court in Dr. Rai
Shivendra Bahadur vs. The Governing
Body of the Nalanda College. That case
arose out of a refusal to promote the writ
petitioner therein as the Principal of a
college. This Court held that in order a
mandamus may issue to compel the
authorities to do something, it must be
shown that the statute imposes a legal duty
on the authority and the aggrieved arty had
a legal right under the statute or rule to
enforce it. This classical position continues
and a mandamus could not be issued in
favour of the employees directing the
government to make them permanent
since the employees cannot show that they
have an enforceable legal right to be
permanently absorbed or that the State has
a legal duty to make them permanent."

14. We find that the petitioner was
recruited in the year 1984 and he was not in
service on the date of issue of the order i.e.
08.04.91. Admittedly the petitioner along
with other candidates was trade tested by
Board of officers for the purpose of
ascertaining his suitability for appointment.
No assurance was given to him with regard
to appointment as ban on recruitment had
been imposed by the Government w.e.f.
03.06.84. The proceedings of the Board of
Officers in this regard therefore could not
progress. Consequently, a doubt had arisen
on the eligibility of some of the candidates
who were trade tested and who were over
aged
at
that
time,
hence
in
the
circumstances, the matter was forwarded to
the higher authorities vide letter dated
30.03.92 for obtaining Government sanction
with regard to relaxation of age in such
matter. However, the matter was remitted
back under covering letter dated 23.05.92
clarifying that only those personnel who
meet the criteria stated above i.e. they are
otherwise eligible for regular appointment
(a) only such casual workers who were
recruited before 07.06.88 and who are in
service on 08.04.91. (b) who had worked
736 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
for more than 240 days including broken
period would be eligible for regularization
(even if they were recruited otherwise
through employment exchange and had
crossed the upper age limit).Since the
petitioner was disengaged from service with
effect from 16.11.84 he could not be
considered in these facts and circumstances.

15. A rejoinder affidavit was filed
denying the contention of counter affidavit
and reiterating the contents of the writ
petition.

16. We have heard the petitioners
counsel Sri Anubhav Chandra and learned
Standing Counsel for the respondents.

17. It has been argued on behalf of
petitioner on the basis of two decisions of
this Court passed in Civil Misc. Writ
Petition No. 40713 of 2002 Union of India
through Secretary, Ministry of Defence,
Government of India, New Delhi and
others vs. Jagat Narain Mishra and
another decided on 18.01.2008 and also the
judgment rendered in Writ-A No. 12912 of
2006 Union of India through Secretary,
Ministry of Defence, New Delhi and others
vs. Shamshad Husain and another decided
on 13.05.2010 that appointments had been
made by the respondents by providing age
relaxation to the candidates in these cases
hence, the petitioner is also entitled for age
relaxation on the basis of parity.

18. Counsel for the respondents
argued that since the petitioner did not
possess the eligibility criteria aforesaid,
hence
he
was
rightly
not
offered
appointment and the representation made by
him pursuant to the judgement rendered by
the
Central
Administrative
Tribunal,
Allahabad. The order passed on the
representation dated 19.12.2002 of the
petitioner shows that it was rejected on that
ground that:-

"Though he was in casual service
before 7th June 1988, he was not in service
on 8th April 1991."

19. Moreover, the petitioner has
himself annexed certificate of experience as
Annexure 2 to the writ petition which
shows that he had worked for the following
periods in the establishment:-

"1. 08.11.83 to 07.12.83

2. 22.12.83 to 18.02.84.

3. 16.04.84 to 13.07.84

4. 17.08.84 to 10.10.84 and

5. 07.12.84 to 05.01.85"

20. It is established from the own
document of working period shown by the
petitioner that he was not in service on 8th
April 1991. Further paragraph 2 of
Annexure No. 9 appended with the writ
petition which is copy of O.M. No.
49014/4/98-Estt. (C) Ministry of Personnel,
Public Grievances and Pension ( Deptt of
Personnel and Trg) dated 08th April 1991
mentions that:-

" Requests have now been received
from various Ministries Department for
allowing relaxation in the conditions of
upper age limit and sponsorship through
employment exchange for regularization of
such casual employees against Group 'D'
posts, who were recruited prior to 7.6.88
i.e. date of issue of guidelines. The matter
has been considered and keeping in view
the fact that the casual employees belong to
the economically weaker section of the
society and termination of their services will
cause undue hardship to the, it has been
decided as a one time measure in
consultation with the Director General
2 All] Smt. Rama Kushwaha and others V. State of U.P. and another
737
Employment and Training, Ministry of
Labour that casual workers recruited
before 07.06.88 and who are in service on
the date of issue of these instructions, may
be considered for regular appointment to
Group 'D' posts, in terms of the general
instruction, even if they were recruited
otherwise
than
through
employment
exchange and had crossed the upper age
limit prescribed for the posts provided they
are
otherwise
eligible
for
regular
appointment in all other respects."

21. It is apparent from the above OM
that consideration of casual workers for
regularization was only as a one time
measure, in consultation with the Director
General
Employment
and
Training,
Ministry of Labour. Since the petitioner was
not in service on 8th April, 1991, when this
letter was issued he had no right of
regularization.

22. The decisions referred to by the
counsel for the petitioner are not applicable
in this case as the petitioner in those cases
were not in service on 8th April, 1991 the
date on which the policy decision was
enforced
by
the
government.
These
decisions only refer to the relaxation of age,
whereas it is clearly revealed in the
impugned order that the application for
regular appointment of the petitioner had
not been rejected only on the grounds of his
being over age at the time of trade test.

23. As in the instant case, the
petitioner has not been able to show that he
has any legal right to be permanently
absorbed and he was not eligible on the date
one time concession was granted to such
employee who were working as such the
petition deserves to be dismissed.

24. For all the reasons stated above,
the writ petition is dismissed. No order as to
costs.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.06.2012

BEFORE
THE HON'BLE RAMESH SINHA, J.

Criminal Misc. Application No. 7268 of 2010

Smt. Rama Kushwaha and others

 ...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri Raghubir Singh

Counsel for the Respondents:
Govt. Advocate
Sri Dashrath Lal

Code of Criminal Procedure-Section 482quashinfg of summoning order-offence
under Section 498-A with 3/4 D.P. ActMagistrate passed order on basis of
material-recorded under Section 200 and
202 Cr.P.C.-does not form any illegalitymediation failed between the partiesapplication-dismissed-interim
order
vacated.

Held: Para 6 and 7

I have perused the summoning order
dated 5.11.2009 which has been passed
on the basis of the statement recorded
under Sections 200 Cr.P.C. and 202
Cr.P.C. respectively. On the basis of the
material available on record, the learned
Magistrate found a prima facie case
made out against the applicants has
summoned them to face the trial in the
aforesaid offences.

In my opinion, the summoning order
dated 5.11.2009 does not suffer from
any illegality nor it can be said to be