# Krishna Kumar v. State of U.P. & Ors

- **Citation:** (2023) 9 ILRA 362
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-28
- **Case number:** Writ-A No. 3032 of 2006
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/krishna-kumar-v-state-of-u-p-ors-50794
- **Pages:** 5

## Headnote

Law
-
District
Primary
Education
Program
-
Contract
basis
appointment - Circular dated 29.09.2006
- Absorption on the post of Peon in Sarva
Shiksha Abhyan was claimed - In the
absence of sanctioned post, how far the
Court can direct for creation of post -
Held, in absence of any sanctioned post,
no direction can be issued for absorption
of an employee of the government - Ilmo
Devi's case relied upon. (Para 17)

Writ petition dismissed. (E-1)

List of Cases cited:

## Text

362 INDIAN LAW REPORTS ALLAHABAD SERIES
order in the disciplinary proceedings will
be passed whereas in the present case
though charge-sheet was issued to the
petitioner and his reply was taken but
thereafter procedure as provided under
Rule 7 and Rule 9 of The Uttar Pradesh
Government
Servant
(Discipline
and
Appeal) Rules, 1999 has not been followed,
therefore, the final order passed by the
District
Basic
Education
Officer
on
30.12.2022 cannot sustain in the eyes of
law.

50. In view of the aforesaid reasons,
this writ petition is allowed. The order
dated 30.12.2022 passed by the District
Basic Education Officer, Basti is quashed.
Respondent No. 1 i.e. District Basic
Education Officer, Basti is directed to
reinstate the petitioner in service forthwith
and to pay his salary along with arrears.
----------
(2023) 9 ILRA 362
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.08.2023

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ-A No. 3032 of 2006

Krishna Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Rajesh Kumar Katiyar, Ajay Pratap Singh,
Amitabh Kumar Rai, Avdhesh Shukla, B.K.
Katiyar, Dinesh Kumar, Pramod Kumar Verma

Counsel for the Respondents:
C.S.C., A. M. Tripathi, Prashant Arora, Rahul
Shukla, Sarvesh Kumar Dubey, V.K. Bajpai

A.
Service
Law
-
District
Primary
Education
Program
-
Contract
basis
appointment - Circular dated 29.09.2006
- Absorption on the post of Peon in Sarva
Shiksha Abhyan was claimed - In the
absence of sanctioned post, how far the
Court can direct for creation of post -
Held, in absence of any sanctioned post,
no direction can be issued for absorption
of an employee of the government - Ilmo
Devi's case relied upon. (Para 17)

Writ petition dismissed. (E-1)

List of Cases cited:

1. The Government of T. N. & anr. Vs T. N.
Makkal Nala Paniyalargal & ors.; 2023 LiveLaw
(SC) 294

2. U.O.I.& ors. Vs Ilmo Devi & anr.; 2021 SCC
OnLine SC 899

(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Sri Avdhesh Shukla, learned
counsel for the petitioners, Sri Pankaj Patel,
learned Standing Counsel for the Staterespondent, Sri Sarvesh Kumar Dubey,
learned counsel for respondent No.2 and
Sri Udai Veer Singh, learned counsel for
respondent Nos.4 and 5.

2. By means of the present writ
petition, the petitioner has challenged the
impugned order dated 31.3.2006, contained
in Annexures-5 and 6 to the writ petition. It
has been prayed for issuance of writ, order
or direction in the nature of mandamus,
commanding the respondents to allow the
petitioners to work on the post of Peon and
make payment of salary to them on the said
post as and when it becomes due.

3. Factual matrix of the case is that
the petitioner No.1 was appointed on
16.2.2000
and
petitioner
No.2
was
appointed on 15.2.2000, on contract basis
in District Primary Education Program.
Copy of the appointment letter dated
9 All. Krishna Kumar Vs. State of U.P. & Ors.
363
17.12.2001 was issued by the respondent
No.4. The petitioners continued to work
under the respondent No.4 with sincerity. A
circular was issued on 29.9.2006 by the
respondent No.2, indicating that District
Primary Education Program scheme will
come to an end on 31.3.2006 and the
employees will be absorbed in Sarva
Shiksha Abhyan.

4. Service of both the petitioners was
terminated by the impugned order dated
31.3.2006.

5. Learned counsel for the petitioners
placed reliance upon certain orders passed
in similar Writ Petitions No.5018 (S/S) of
2003 and 5334 (S/S) of 2003, whereby
order was passed directing the respondents
to allow the petitioners of the aforesaid writ
petitions to continue in Sarva Shiksha
Abhyan scheme.

6. By means of the present writ
petition, the petitioners are also claiming
parity of the orders passed in the aforesaid
writ petitions.

7. Submission of learned counsel for
the petitioners is that once the scheme was
converted into Sarva Shiksha Abhyan with
the permission to permit the employees
working in District Primary Education
Program to continue in Sarva Shiksha
Abhyan scheme, there is no justification on
the part of the respondents not to permit the
petitioners to continue in Sarva Shiksha
Abhyan scheme. Next submission is that
one post was sanctioned in Sarva Shiksha
Abhyan, therefore, the petitioners are
entitled to continue against the said post.
Next submission is that the impugned order
passed by by the respondent No.4 is not
justifiable in law and is liable to be set
aside.

8. Last submission of learned counsel
for the petitioners is that the impugned
order has been passed in violation of
principles of natural justice, without
affording an opportunity of hearing to the
petitioners.

9. On the other hand, learned counsel
for respondent No.4 invited attention of this
Court on page 21 of the counter affidavit
filed by the respondent No.4, wherein it has
been shown that at district level, one post
of Peon was sanctioned by the Sarva
Shiksha Abhyan and the statement of fact
has been made in paragraphs 7 and 8 of the
counter affidavit that one Kamlesh Kumar
was granted appointment on the basis of
seniority by giving preference over others.

10. In paragraph 3 of the counter
affidavit filed by the respondent No.2, it
has been stated that due to non-availability
of
sanctioned
post,
service
of
the
employees shall come to an end and in
paragraph 4 thereof, it has been stated that
due to non-availability of sanctioned post,
no rightful claim of the employees who are
granted appointment in District Primary
Education Program scheme, shall be
available. This fact has been repeated in
paragraph 12 thereof.

11. In support of the submission
advanced that in absence of sanctioned
post, the State cannot be compelled to
create a post and absorb the persons who
are continuing in service of the State, the
direction issued by the High Court to
reinstate the employees after creating the
posts
and
absorb
them
on
their
qualification, is not sustainable in law, Sri
Sarvesh Dubey, Advocate placed reliance
upon a judgment in the case of The
Government of Tamil Nadu & another
Vs.
Tamil
Nadu
Makkal
Nala
364 INDIAN LAW REPORTS ALLAHABAD SERIES
Paniyalargal & Others [2023 LiveLaw
(SC) 294].

12. It is submitted that similar view
has been taken in the case of Union of
India & Others Vs. Ilmo Devi & another
[2021 SCC OnLine SC 899].

13. After having heard the rival
contention of learned counsel for the
parties, I perused the material on record as
well as the judgments relied upon.

14. On perusal of the material on
record, it is evident that there is one
sanctioned post of Peon in Sarva Shiksha
Abhyan at district level. In view of the
judgments relied upon by Sri Dubey,
Advocate, it is crystal clear that no
direction can be issued for creation of post
to absorb the person who is working in the
government department. It is admitted case
of the parties that there is one sanctioned
post of Peon.

15. Relevant paragraphs 54 to 57 of
the
judgment
in
the
case
of
The
Government of Tamil Nadu (Supra) are
being quoted as under :-

"54. At the same time, this Court
further observed that in absence of
sanctioned post, the State cannot be
compelled to create the post and absorb the
persons who are continuing in service of
the State.

55. In Nihal Singh and Others
(supra) on which heavy reliance has been
placed, it was a case where appointments
were made by the State Government under
Section 17 of the Police Act, 1861. Since
their appointments were under the Act,
1861 and were allowed to continue for
sufficient long time, which was not
considered to be illegal or irregular
appointment, this Court considered it
appropriate to observe that as they are
allowed to continue for such a long term,
they deserve regularization of service. In
the instant case, the respondents were
never appointed in the establishment of the
Government against a regular sanctioned
post, in the absence whereof, judgment may
be of no assistance.

56. The later judgment in Malathi Das
(Retired) Now P.B. Mahishy (supra) which
has been relied upon, it was a case where
the employees were working on daily wage
basis serving in different departments
which
are
indeed
Government
establishments. At one stage, the employees
approached the High Court claiming
regularization of service and the High
Court of Karnataka came to their rescue
and directed the State Government to
regularize service of such employees who
are serving on a daily wage basis in
Government departments and finally the
SLP
was
dismissed
by
this
Court.
Thereafter, contempt petitions were filed
before the High Court and in two phases,
the employees were regularized, in the first
and second phase of filing contempt
petition by the incumbents concerned. But
few of the incumbents filed contempt
petition which appears to be the third
phase, they were not considered for
regularization despite the order of the High
Court being confirmed by this Court on
dismissal of the special leave petition on
the premise of the judgment of this Court in
Secretary, State of Karnataka and Others
Vs. Umadevi (3) and Others (supra). This
Court was of the view that once the
judgment of the High Court has been
affirmed and in two phases on filing
contempt petitions, employees have been
regularized, there appears no reason to
deviate and take away the claim of rest of
the employees who are covered by the
9 All. Krishna Kumar Vs. State of U.P. & Ors.
365
judgment of the High Court, may be the
reason that there was a change in law on
the subject after passing of the judgment of
this Court in Secretary, State of Karnataka
and Others Vs. Umadevi (3) and Others
(supra) and this is not the factual matrix in
the instant case.

57. We are of the considered view that
the direction of the High Court to reinstate
after creating the posts and absorb the
respondents based on their qualification is
not sustainable in law and deserves outright
rejection."

16. Relevant paragraphs 27 and 28 of
the judgment in the case of Union of India
& Others Vs. Ilmo Devi & another
(Supra), are quoted below :-

"27. In the case of Daya Lal & Ors.
(supra) in paragraph 12, it is observed and
held as under:-

?12. We may at the outset refer to the
following well settled principles relating to
regularisation and parity in

pay, relevant in the context of these
appeals:

(i) The High Courts, in exercising
power under Article 226 of the Constitution
will not issue directions for regularisation,
absorption or permanent continuance,
unless
the
employees
claiming
regularisation had been

appointed in pursuance of a regular
recruitment in accordance with relevant
rules in an open competitive process,
against sanctioned vacant posts. The
equality clause contained in Articles 14
and 16 should be scrupulously followed
and Courts should not issue a direction for
regularisation of services of an employee
which
would
be
violative
of
the
constitutional scheme. While something
that is irregular for want of compliance
with

one of the elements in the process of
selection which does not go to the root of
the process, can be regularised, back door
entries, appointments contrary to the
constitutional scheme and/or appointment
of
ineligible
candidates
cannot
be
regularised.

(ii) Mere continuation of service by a
temporary or ad hoc or daily-wage
employee, under cover of some interim
orders of the court, would not confer upon
him any right to be absorbed into service,
as such service

would be ?litigious employment?.
Even temporary, ad hoc or daily-wage
service for a long number of years, let
alone service for one or two years, will not
entitle
such
employee
to
claim
regularisation, if he is not working

against a sanctioned post. Sympathy
and sentiment cannot be grounds for
passing any order of regularisation in the
absence of a legal right.

(iii)
Even
where
a
scheme
is
formulated for regularisation with a cut-off
date (that is a scheme providing that
persons who had put in a specified number
of years of service and continuing in
employment as on the cut-off

date), it is not possible to others who
were appointed subsequent to the cut-off
date, to claim or contend that the scheme
should be applied to them by extending the
cut-off date or seek a direction for framing
of fresh schemes providing for successive
cut-off dates.

(iv) Part-time employees are not
entitled to seek regularisation as they are
not working against any sanctioned posts.
There cannot be a direction for absorption,
regularisation or permanent continuance of
part-time temporary employees.

(v) Part-time temporary employees in
government-run institutions cannot claim
parity in salary with regular employees of
366 INDIAN LAW REPORTS ALLAHABAD SERIES
the Government on the principle of equal
pay for equal work. Nor can employees in
private

employment, even if serving full time,
seek parity in salary with government
employees. The right to claim a particular
salary against the State must arise under a
contract or under a statute.

[See State of Karnataka v. Umadevi
(3) [(2006) 4 SCC 1], M. Raja v. CEERI
Educational Society [(2006) 12 SCC

636], S.C. Chandra v. State of
Jharkhand
[(2007)
8
SCC
279],
Kurukshetra Central Coop. Bank Ltd. v.
Mehar Chand [(2007) 15 SCC 680] and
Official Liquidator v. Dayanand [(2008) 10
SCC 1.]

28. Thus, as per the law laid down by
this Court in the aforesaid decisions parttime employees are not entitled to seek
regularization as they are not working
against any sanctioned post and there
cannot be any permanent continuance of
part-time temporary employees as held.
Part-time temporary employees in a
Government run institution cannot claim
parity in salary with regular employees of
the Government on the principle of equal
pay for equal work."

17. The judgments relied upon by
learned counsel for the respondent fully
cover the case of the respondents that in
absence of any sanctioned post, no
direction can be issued for absorption of an
employee of the government.

18. In view of the reasons recorded,
this writ petition fails and is hereby
dismissed.

19. It is however made clear that as
and when vacancy will be created, the
claim of the petitioners shall be taken into
consideration by the respondents.
----------
(2023) 9 ILRA 366
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.09.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Writ-A No. 4422 of 2015

Vishwanath Vishwakarma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Arvind Kumar Vishwakarma, Ramesh Kumar
Srivastava

Counsel for the Respondents:
C.S.C., Savitra Vardhan Singh

A. Service Law - Constitution of India -
Article 311 (4) - Dismissal from service -
Conviction of life imprisonment u/s 302
and 149 IPC - Conduct of the employee -
Relevancy - Held, the impugned order has
been passed only on the ground of
conviction without having any discussion
or application of mind over the conduct of
the
petitioner,
which
is
mandatory
requirement in light interpretation of
Article 311(2)(a) of Constitution of India -
Tulsiram Patel's case relied upon - High
Court set aside the termination order.
(Para 24 and 25)

B. Service Law - Constitution of India -
Article 300-A - Right to property - Post
retiral benefits - One day before the
retirement, the employee was dismissed -
He was also refused the post retiral
benefit on the ground of conviction order
- Legality challenged - Held, under Article
300(A) of Constitution of India, pension
and other post retiral benefits are not
bounty, but a property and cannot be
taken away without provision of law -
High Court directed to pay the post retiral
benefit including pension within three
months. (Para 26 and 31)