# K. Prasad v. State of U.P. and others

- **Citation:** (2006) 1 ILRA 244
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-12-07
- **Case number:** Civil Misc. writ Petition No. 74397 of 2005
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/k-prasad-v-state-of-u-p-and-others-40833
- **Pages:** 5

## Headnote

Constitution of India Art. 226-Service
Law-Regularisation-Petitioner engaged
by Nagar Punchayat-on the post of peon
on consolidated salary of Rs.1200-per
month-without
any
advertisement
without
any
selections
against
the
statutory rules-not confer any right to
claim regularisation-observation made
regarding mode of appointment in Public
office by affording right of consideration
to all suitable candidates.

Held: Para 3

It is disputed by the petitioner that
before his appointment there was no
advertisement
or
invitation
of
application
from
eligible
incumbents
against the vacancy which is said to be
existing in the officer of the Nagar
Panchayat Khanpur. The petitioner was
appointed on contract basis and no on
regular basis. The appointment was not
in accordance with statutory rules. In
other words, the appointment of the
petitioner was nothing but a back door
entry Since, on his application submitted
before the Nagar Panchayat, he was
given appointment on contract basis on
consolidated salary of Rs.1200/-, such
appointment does not confer any legal
1 All] K. Prasad V. State of U.P. and others
245
right either to consider or to claim
regular appointment against substantive
or permanent vacancy. Whenever there
is a vacancy in the public officer, it is
obligatory to the state to fill up the same
by affording right of consideration to all
eligible and suitable persons, who are
aspiring for a job in the State and
awaiting
the
opportunity
of
consideration. Thus, the vacancy should
be notified to all, and thereafter the
recruitment should be made as per rules
which would be in conformity with
Article 16 of the Constitution of India
also.
Case Law discussed.
AIR 1992 SC-2130
AIR 1996 SC-976
1996 (4) SCC-319
AIR 1998 SC-1021
AIR 1995 SC -962
2005 Sec. 209
2003 (1) SCC-12
2004 (7) SCC-112

## Text

244 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
26.10.2002. The petitioners approached
this Court on 10.4.2003 i.e. within one
year from the date of issuance of the
appointment letters. Even though there is
no period of the limitation for the life of
the waiting list and, assuming that the life
should be of one year, even then, the
petitioner approached this Court within
the validity of the life of the waiting list.
The mere fact that the life of the waiting
list expired during the pendency of the
writ petition does not mean that this Court
is powerless to grant the relief. The
Supreme court in State of U.P. Vs. Ram
Swarup Saroj (supra) has clearly held
that where the validity of the period of the
select list expires during the pendency of
the litigation, the Court could still grant
the relief, if the incumbent was entitled to
the relief. In Sheo Shyam and others vs.
State of U.P. and others 2004(2) ESC
256, the Supreme Court held that the
period of one year of the life of the select
list should be computed from the last date
when the recommendations were made.

In view of the aforesaid, I find that
the petitioners are entitled to the relief
claimed. The respondents were not
justified in leaving the vacancy vacant
and the respondents should have utilised
the waiting list prepared for filling up the
remaining
number
of
vacancies.
Consequently, the writ petitions are
allowed. A mandamus is issued to the
respondents commanding them to utilise
the waiting list so prepared and fill the
remaining vacancies out of the total
number of 91 that was advertised in the
year 1998, within three months from the
date of the production of a certified copy
of this order. In the circumstances of the
case, parties shall bear their own cost.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.12.2005

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. writ Petition No. 74397 of 2005

K. Prasad

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

Counsel for the Petitioner:
Sri S.C. Srivastava
Sri Sudhakar Upadhyay

Counsel for the Respondents:
SC

Constitution of India Art. 226-Service
Law-Regularisation-Petitioner engaged
by Nagar Punchayat-on the post of peon
on consolidated salary of Rs.1200-per
month-without
any
advertisement
without
any
selections
against
the
statutory rules-not confer any right to
claim regularisation-observation made
regarding mode of appointment in Public
office by affording right of consideration
to all suitable candidates.

Held: Para 3

It is disputed by the petitioner that
before his appointment there was no
advertisement
or
invitation
of
application
from
eligible
incumbents
against the vacancy which is said to be
existing in the officer of the Nagar
Panchayat Khanpur. The petitioner was
appointed on contract basis and no on
regular basis. The appointment was not
in accordance with statutory rules. In
other words, the appointment of the
petitioner was nothing but a back door
entry Since, on his application submitted
before the Nagar Panchayat, he was
given appointment on contract basis on
consolidated salary of Rs.1200/-, such
appointment does not confer any legal
1 All] K. Prasad V. State of U.P. and others
245
right either to consider or to claim
regular appointment against substantive
or permanent vacancy. Whenever there
is a vacancy in the public officer, it is
obligatory to the state to fill up the same
by affording right of consideration to all
eligible and suitable persons, who are
aspiring for a job in the State and
awaiting
the
opportunity
of
consideration. Thus, the vacancy should
be notified to all, and thereafter the
recruitment should be made as per rules
which would be in conformity with
Article 16 of the Constitution of India
also.
Case Law discussed.
AIR 1992 SC-2130
AIR 1996 SC-976
1996 (4) SCC-319
AIR 1998 SC-1021
AIR 1995 SC -962
2005 Sec. 209
2003 (1) SCC-12
2004 (7) SCC-112

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

1. Heard Sri S.C. Srivastava learned
counsel for the petitioner and the learned
Standing Counsel for respondent nos. 1
and 2.

2. The learned counsel for the
petitioner submits that the petitioner was
appointed on a consolidated pay of
Rs.1200/- per month on contract basis on
an application submitted by him before
the
Adhyaksh,
Nager
panchayat,
Khanpur,
District
Bulandshahar
on
8.7.2002 whereupon an order was passed
appointing the petitioner as peon. A copy
of the petitioner's application as well as
endorsement
thereon
showing
his
appointment on contract basis on fixed
salary of Rs.1200/- is Annexure-1 to the
writ petition. The petitioner, however,
submits that since then he is continuing to
discharge his duties. On 3.7.2003, a
meeting of the Nagar Panchayat took
place wherein it was resolved that since
there is a vacancy of Chaprasi in the
office of the Nagar Panchayat, Khanpur
and the petitioner is a scheduled caste
candidate working on contract basis, he
may be regularized on the said post. A
copy of this resolution has been filed as
Annexure 4 to the writ petition. However,
it is stated by the petitioner that no action
has been taken in pursuance of the said
resolution. Since he has been working for
more then three years, therefore, in law he
is
entitled
to
be
considered
for
regularization. Reliance has been placed
on the Government Order daed 3.2.1992
(Annexure8) and the law laid down by the
Hon. Supreme Court in the case of State
of Haryana and Ors. Vs. Piara Singh and
Ors. AIR 1992 SC 2130.

3. It is disputed by the petitioner that
before his appointment there was no
advertisement or invitation of application
from eligible incumbents against the
vacancy which is said to be existing in the
officer of the Nagar Panchayat Khanpur.
The petitioner was appointed on contract
basis and no on regular basis. The
appointment was not in accordance with
statutory rules. In other words, the
appointment of the petitioner was nothing
but a back door entry Since, on his
application submitted before the Nagar
Panchayat, he was given appointment on
contract basis on consolidated salary of
Rs.1200/-, such appointment does not
confer any legal right either to consider or
to claim regular appointment against
substantive
or
permanent
vacancy.
Whenever there is a vacancy in the public
officer, it is obligatory to the state to fill
up the same by affording right of
consideration to all eligible and suitable
persons, who are aspiring for a job in the
246 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
State and awaiting the opportunity of
consideration. Thus, the vacancy should
be notified to all, and thereafter the
recruitment should be made as per rules
which would be in conformity with
Article 16 of the Constitution of India
also.

4. The Apex Court in the case of
Piara Singh (Supra) considered the
validity
of
the
Government
Orders
Providing scheme for regularization and
observed as follows:

"The court cannot obviously help
those who cannot get regularized under
these orders for their failure to satisfy the
conditions prescribed therein. Issuing
general declaration of indulgence is no
part of our jurisdiction. In case of such
persons we can only observe that it is for
the respective Governments to consider
the feasibility of giving them appropriate
relief, particularly in cases where persons
have been continuing over a long number
of years, and where eligible and qualified
on the date of their adhoc appointment
and further whose record of service is
satisfactory."

5. The question as to whether the
appointment on a post in State can be
made without advertising the vacancies
and inviting application from public at
large came up for consideration before the
Apex Court in a catena of cases.

In
Ashok
kumar
& Ors. Vs.
Chairman, Banking Service recruitment
Board and Ors., AIR 1996 SC 976, the
Supreme Court held as under :
"The recruitment of the candidates in
excess of the notified vacancies is a denial
and deprivation of the constitutional right
under Article 14 read with Article 16 (1)
of the Constitution."
6. Again in the case of Prem Singh
& Ors. Vs. Haryana State Electricity
Board and Ors. (1996) 4 SCC 319, the
Supreme Court held as under:

"If the requisition and advertisement
are for a certain number of posts only, the
State cannot make more appointments
than the number of posts advertised."

7. Subsequently In Kamlesh Kumar
Sharma Vs. Yogesh Kumar Gupta & Ors.
AIR 1998 SC 1021, the Apex Court held
as under:

"As per the scheme of the Act and
the
aforesaid
provisions,
for
each
academic
year
in
question,
the
management has to intimate the existing
vacancies and vacancies likely to be
caused by the end of the ensuing
academic year in question. Thereafter, the
Director shall notify the same to the
Commission and the Commission, in turn,
will invite applications by giving wide
publicity in the State of such vacancies.
The vacancies cannot be filled except by
following the procedure as contained
therein, sub-section (1) of Section 12 has
incorporated in strong words that any
appointment made in contravention of the
provisions of the Act shall be void. This
was to ensure to back door entry but
section only as provided under the said
sections,"

8. Deprecating the practice of claim
for regular appointment on post merely on
the ground of long continuous service the
Apex Court in the case of Dr. Arundhati
A. Pargaonkar Vs. State of Maharashtra,
AIR 1995 SC 962, held as under:
1 All] K. Prasad V. State of U.P. and others
247
"Nor the claim of the appellant, that
she having worked as lecturer without
break for 9 years' on the date the
advertisement was issued, she should be
deemed to have been regularized appears
to be well founded. Eligibility and
continuous working for howsoever long
period should not be permitted to overread the law. Requirement of rules of
selection ............ cannot be substituted
by humane considerations. Law must take
its course."

9. In Binod Kumar Gupta Vs. Ram
Ashray Mahoto & Ors. (2005) SCC 209,
the Apex Court refusing to permit
continuance in service after 15 years
observed as under:

"if we allow the appellants to
continue in service merely because they
have been working in the posts for the last
15 years we would be guilty of condoning
a gross irregularity in their initial
appointment."

10. In the case of Surendra Kumar
Sharma Vs. Vikas Adhikari, 2003 (1)
SCC 12, the Apex Court noticed its earlier
judgment
in
Delhi
Development
Horticulture Employees' Union held as
under:
"A good deal of illegal employment
market has development resulting in a
new source of corruption and frustration
of those who are waiting at the
employment exchanges for years. Not all
those who gain such back door entry in
the employment are in need of the
particular jobs. Though already employed
elsewhere, they join the jobs for better
and secured prospects. That is why most
of the cases which come to the courts are
of
employment
in
government
departments,
public
undertakings
or
agencies. Ultimately it is the people who
bear the heavy burden of the surplus
labour. The other equally injurious effect
of indiscriminate regularization has been
that many of the agencies have stopped
undertaking casual or temporary works
though they are urgent and essential for
fear that if those who are employed on
such works are required to be continued
for 240 or more days they have to be
absorbed as regular employees although
the works are time bound and there is no
need of the workmen beyond the
completion of the works undertaken. The
public interests are thus jeopardized on
both counts."

11. Lastly a three judges Bench of
the Apex Court in a Umarani Vs.
Registrar Cooperative Society & Ors.
(2004) 7 SCC 112 after a review of the
entire earlier case law, in para 39, 40 and
41 observed as under:

"39.
Regularization,
in
our
considered opinion, is not and cannot be
the mode of recruitment by any "State"
within the meaning of Article 12 of the
Constitution of India or any body or
authority governed by a statutory Act or
the Rules framed hereunder. It is also now
well settled that an appointment made in
violation of the mandatory provisions of
the statute and in particular, ignoring the
minimum educational qualification and
other essential qualification would be
wholly illegal. Such illegality cannot be
cured by taking recourse to regularization.
40. It is equally well settled that those
who come by back door should go
through that door.
41. Regularization furthermore cannot
give permanence to an employee whose
services are ad hoc in nature."
248 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
12. A Division Bench of this Court
also, following large number of the Apex
Court Judgments, in the case of District
Judge, Baghpat Vs. Anurag Kumar and
Ors. Special Appeal No. 702 of 2005
decided on 31.05.2005, held as under:

"Appointments
made
in
contravention of the statutory provisions
remain in executable."

13. In the present case the petitioner
has not claimed regularization under any
statutory provision. The Government
Order dated 3.2.1992 filed by the
petitioner as Annexure 8 to the writ
petition is of no help to the petitioner. A
bare perusal of the aforesaid Government
Order shows that it was a one time
measure undertaken by the Government
Order shows that it was a one time
measure undertaken by the Government
to regular persons who were appointed
prior to 11.10.1989 and have worked for
240 days in each year and also completed
three years service. It is inapplicable to
the case of petitioner.

14. In the above circumstances. I do
not find any merit in the writ petition,
accordingly it is dismissed summarily.
Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.01.2006

BEFORE
THE HON'BLE UMESHWAR PANDEY, J.

Civil Misc. Writ Petition No. 5285 Of 2006

Kamal Singh and others

...Petitioners/Defendants
Versus
Smt. Faiyazan ...Respondent/Plaintiff
Counsel for the Petitioners:
Sri Govind Krishna

Counsel for the Respondent:
Smt. Kamla Mishra
S.C.

Code of civil Procedure-Order XVIII rule
2(4) as amended after 1999, Section
151-Permission to examine witnesseven after the closure of evidencesrejection-held not proper-on the ground
of delay as the provision of order 18 rule
2 has been deleted- under inherent
power-the court has every jurisdictionto pass any order-which in the opening
of court is just and proper.

Held: Para 4

Naturally, this fact is a very relevant fact
in the matter and if the evidence of
Ompal throws due light on such issue, it
will definitely facilitate just and proper
adjudication of the dispute between the
parties, which has to be decided by the
court. Obviously, the evidence of Ompal
was relevant and permission of his
examination as a witness could not have
been refused simply because there was
some delay in the proposal made by the
defendants
petitioners
for
such
tendering of the evidence. It should have
also not been refused simply because
sub-rule (4) of Rule 2 of Order XVIII
C.P.C.
had
been
deleted
in
1999
amendment from the Code. The principle
of law laid down by the apex court and
otherwise also under the inherent power
of the Court, as enshrined under Section
151
C.P.C.,
the
court
has
every
jurisdiction to pass any such order,
which in its opinion appears to be just
and proper for proper dispensation of
justice to the parties. Accordingly, the
prayer of the petitioners to the extent it
was made for examining the witnesses
Ompal was quite justifiable. The other
witness Jitendra, who is the scribe of
sale deed and is also relevant witness,
must be examined and permission for his