# Krishna Kumar Sharma v. State of U.P. and others

- **Citation:** (2008) 1 ILRA 25
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-01-23
- **Case number:** Civil Misc. Writ Petition No. 54573 of 2007
- **Bench:** Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/krishna-kumar-sharma-v-state-of-u-p-and-others-41028
- **Pages:** 4

## Headnote

Constitution of India-Art. 226-Seniorityappointment on adhoc/Temporary basiswithout following the procedure for
appointment-subsequently
regularizedwhether the period of working prior to
regularized be counted for determining
the seniority?-held-'No' as per dictum of
Full Bench decision.

Held: Para 9

The
criteria
for
determination
of
seniority in accordance with the U.P.
Government
Service
Seniority
Rules,
1991 is from the date of-substantive
appointment. The date of substantive
appointment of the petitioner has rightly
been treated as 8th January, 1981 after
his regularisation in services, which does
not suffer from any error.
Case law discussed:
(1990) 2 S.C.C. 715, (2000) 8 S.C.C. 25,
2005(1) E.S.C. 161

## Text

1 All] Krishna Kumar Sharma V. State of U.P. and others
25
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.01.2008

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 54573 of 2007

Krishna Kumar Sharma
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Anoop Trivedi

Counsel for the Respondents:
Sri K.K. Chand
S.C.

Constitution of India-Art. 226-Seniorityappointment on adhoc/Temporary basiswithout following the procedure for
appointment-subsequently
regularizedwhether the period of working prior to
regularized be counted for determining
the seniority?-held-'No' as per dictum of
Full Bench decision.

Held: Para 9

The
criteria
for
determination
of
seniority in accordance with the U.P.
Government
Service
Seniority
Rules,
1991 is from the date of-substantive
appointment. The date of substantive
appointment of the petitioner has rightly
been treated as 8th January, 1981 after
his regularisation in services, which does
not suffer from any error.
Case law discussed:
(1990) 2 S.C.C. 715, (2000) 8 S.C.C. 25,
2005(1) E.S.C. 161

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Sri Anoop Trivedi learned
counsel for the petitioner and Sri K.K
Chand, learned standing counsel.

2. By this writ petition, the
petitioner has prayed for a writ of
certiorari quashing the order dated 8th
March, 2007 passed by the Additional
Director of Education (Madhyamik),
Uttar Pradesh rejecting the representation
of the petitioner dated 6th October, 2004
claiming addition of period of his ad-hoc
appointment from 8.1.1975 till 7th April,
1981 for seniority. A writ of mandamus
has also been sought commanding the
respondents to prepare a fresh seniority
list computing the seniority of the
petitioner from the date of initial joining,
i.e., with effect from 8th January, 1975.

3. Brief facts necessary for deciding
the writ petition are; the petitioner was
appointed as Assistant Teacher (L.T.
Grade) in Government Inter College,
Arakot (Uttarkashi) on temporary basis by
order of the Director of Education dated
24th December, 1974 in pursuance of
which he joined on 8th January, 1975 as
Assistant Teacher. Petitioner's services
were regularised by an order dated 8th
April, 1981 in accordance with the
provisions of U.P. Regularisation of Adhoc Appointment (On Posts within the
purview
of
the
Public
Service
Commission)
Rules,
1979.
His
substantive appointment has been treated
with effect from 8th April, 1981 and on
that basis he has also been granted
promotion on the post of lecturer. The
petitioner filed a writ petition being Writ
Petition No.14553 of 2005 claiming
seniority from 8th January, 1975, which
was disposed of by this Court vide its
order dated 8th December, 2006. In
pursuance of the order of this Court, the
Additional Director of Education rejected
the representation taking the view that
petitioner was working only on ad-hoc
basis as L.T. Grade Teacher from
26 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
8.1.1975 till his services were regularised,
hence his seniority can be reckoned only
from
the
date
of
his
substantive
appointment, i.e., 8th April, 1981.

4. Learned counsel for the petitioner,
challenging
the
impugned
order,
contended that petitioner is entitled to
reckon his seniority from 8th January,
1975, i.e., his date of initial appointment
since he was regularised under the 1979
Rules, as aforesaid. Learned counsel for
the petitioner has placed reliance on a
judgment of the Apex Court reported in
(1990) 2 S.C.C. 715; Direct Recruit Class
II Engineering Officers' Association vs.
State
of
Maharashtra
and
others.
Learned counsel for the petitioner has
relied on direction 47(A) of the said
judgment. He has also placed reliance on
judgment of the Apex Court reported in
(2000) 8 S.C.C. 25; Rudra Kumar Sain
and others vs. Union of India and others.

5. Learned standing counsel replying
the
submissions
of
the
petitioner's
counsel, contended that petitioner's initial
appointment dated 8th January, 1975 was
an ad-hoc appointment and made de-hors
the rules and the petitioner having been
regularised under 1979 Rules he can treat
his substantive appointment only from the
date of regularisation and as per the U.P.
Government Servant Seniority Rules,
1991 the seniority is to be given only
from the date of substantive appointment,
which for the petitioner is 8th April, 1981.
Learned
standing
counsel
further
contended that the issues raised in the writ
petition are covered by the Full Bench
judgment of this Court reported in
2005(1) E.S.C. 161; Farhat Hussain
Azad vs. State of U.P. and others.

6. I have considered the submissions
of learned counsel for the parties and
perused the record.

7. A copy of the initial appointment
order of the petitioner has been as
Annexure-2 to the writ petition. From a
perusal of the said annexure it is clear that
the petitioner was given a temporary
appointment, which was terminable at any
time by one month's notice. Petitioner's
case in the writ petition, as stated in
paragraph 5, is that services of the
petitioner were regularised under 1979
Rules. Petitioner's regularisation is made
with effect from 8th April, 1981 under
1979 Rules, which date has been treated
as date of his substantive appointment. In
the writ petition there is no foundation
laid
to
the
effect
that
petitioner's
temporary
appointment
was
made
following the procedure as prescribed for
appointment. The Apex Court in Direct
Recruit's case (supra), which has been
relied by counsel for the petitioner, laid
down following in paragraph 47:-

"47. To sum up, we hold that:
(A) Once an incumbent is appointed
to a post according to rule, his seniority
has to be counted from the date of his
appointment and not according to the
date of his confirmation.

The corollary of the above rule is
that where the initial appointment is only
ad hoc and not according to rules and
made as a stop-gap arrangement, the
officiation in such post cannot be taken
into account for considering the seniority.

(B) If the initial appointment is not
made by following the procedure laid
down by the rules but the appointee
continues in the post uninterruptedly till
1 All] Krishna Kumar Sharma V. State of U.P. and others
27
the regularisation of his service in
accordance with the rules, the period of
officiating service will be counted."

8. The issue as to whether the
petitioner's case is covered by corollary of
direction (A) or by direction (b). The Full
Bench judgment of this Court in Farhat
Hussain's case (supra) had occasion to
consider the similar issues. The writ
petitioners in the said case were also
appointed on ad-hoc basis initially, who
were regularised under 1979 Rules. It was
claimed that the period during which the
appointment
was
ad-hoc/temporary
should be reckon for seniority in view of
the judgment of the Apex Court in Direct
Recruit's case (supra). The Full Bench
laid down, after considering large number
of judgments of the Apex Court including
the Direct Recruit's case, that such cases
are covered by corollary 2, direction
47(A). Following was laid down by the
Full Bench of this Court in paragraphs 42
and 46 of the said judgment:-

"42. Thus, the law stands crystallised
that a person appointed on ad hoc basis
on a post de hors the rules or without
following any procedure prescribed by
law,
cannot;
claim
the
benefit
of
reckoning the period of service rendered
by him as such for purpose of seniority or
promotion. The case of an individual
person claiming such a relief is to be
examined in the light of the propositions
'A' and 'B' propounded by the Hon'ble
Apex Court in Direct Recruit Engineers'
case reading it along with the explanation
given in paragraph 13 of the said
judgment, as also explained subsequently
by the Hon'ble Apex Court time and again
in Keshav Chandra Joshi and others
(supra) and Aghore Nath Dey and others
(supra). The appointment should be made
after considering the suitability of all
eligible candidates in strict compliance of
the statutory rules. A minor deficiency in
following the procedure prescribed under
the rules may be ignored but, if the
appointment is to be made in consultation
with the Commission, such a deficiency
cannot be ignored as the appointment
itself would be de hors the rules....."

"46. Rules 4 and 7 of Rules 1979
dealing with regularisation of ad hoc
appointment and seniority provide that an
ad hoc employee appointed by direct
recruitment before 1st January, 1977 and
continuing
in
service
on
the
commencement of the said rules, if
possessed the requisite qualification and
eligibility
at
the
time
of
initial
appointment for the post, and had
completed three years continuous service
would
be
considered
for
regular
appointment
against
permanent
or
temporary vacancy as may be available
after assessing his suitability, following
the reservation policy framed by the State.
His seniority shall be considered only
from the date of order of substantive
appointment after selection in accordance
with the said rules. The said Rule 7 reads
as under:-

"Seniority. - (1) A person appointed
under these rules shall be entitled to
seniority only from the date of the order
of
appointment
after
selection
in
accordance with these rules and shall, in
all case, be placed below the persons
appointed in accordance with the relevant
service rules, or as the case may be, the
regular prescribed procedure, prior to the
appointment of such person under these
rules. "
28 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
9. Thus the Full Bench has clearly
laid down that at ad hoc services prior to
regularisation under 1979 Rules cannot be
reckon for seniority. The Full Bench
judgment in Farhat Hussain's case
(supra) squarely covers the present case
and in view of the said judgment no
infirmity is found in the order impugned
rejecting the claim of the petitioner. The
judgment of the Apex Court in Rudra
Kumar Sain's case (supra) was a case
considering different set of rules, namely,
Delhi Higher Judicial Service Rules, 1970
where ad-hoc appointment was made on
the recommendation of the High Court
and due to the above, the Apex Court laid
down that ad-hoc services of Additional
District Judges be also reckon for
seniority. The above case is clearly
distinguishable and does not help the
petitioner in the present case. The criteria
for
determination
of
seniority
in
accordance with the U.P. Government
Service Seniority Rules, 1991 is from the
date of-substantive appointment. The date
of
substantive
appointment
of
the
petitioner has rightly been treated as 8th
January, 1981 after his regularisation in
services, which does not suffer from any
error.

10. No error has been committed by
the Additional Director of Education in
rejecting the claim of the petitioner of
seniority from the date of his initial adhoc/temporary appointment. No good
ground is made out to interfere with the
impugned order.

The writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.12.2007

BEFORE
THE HON'BLE SUSHIL HARKAULI, J.
THE HON'BLE RAKESH SHARMA, J.

Civil Misc. Writ Petition No. 1676 (Tax) of
2007

M/s Emami Limited

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

Counsel for the Petitioner:
Sri Ashok Kumar
Sri Praveen Kumar

Counsel for the Respondents:
S.C.

U.P. Trade Tax Act, 1948-Section-10 (8)-
words and phrases word-satisfaction of
the assessing authority-demand of Bank
guarantee/cash-commercial
establishment continuing part several
years-assessee suffers from blockage of
capital-held-neither beneficial to trade
tax department nor government for
utilization-direction issued for security
other than cash or bank guarantee.

Held: Para 4

However, where the assessee has an
established
commercial
concern
of
substantial size, continuing over past
several years and is an existing tax
payer, demanding of bank guarantee
may not be desirable except where there
are cogent reasons for requiring bank
guarantee as security. The reason is that
most
Banks
require
pre-deposit
of
equivalent amount of cash for giving of
Bank-guarantee.
Thus
while
the
assessee suffers due to blockage of his
business capital, a bank guarantee does
not give any advantage, benefit or gain
to the trade tax department/Govt., in as
much as the money is not available to