# Lakshman Singh & Ors v. State of U.P. & Ors

- **Citation:** Service Single No. 9184 of 2018
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-05-21
- **Case number:** Service Single No. 9184 of 2018
- **Bench:** Chandra Dhari Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lakshman-singh-ors-v-state-of-u-p-ors-46233
- **Pages:** 24

## Headnote

(A) Civil Law- Appointment - court would
have
the
right
to
regularize

an
appointment made only after following
the due procedure, even though, a non
fundamental element of that process or
procedure has not been followed - this
right would not extend to direct that an
appointment made in clear violation of the
constitutional scheme and statutory rules
can be treated to be permanent
Writ Petition Disposed of. (E-10)

List of cases cited:

## Text

_Characters 0–39,940 of 79,281. This is a partial read: ask again with offset=39940 for what follows._

802 INDIAN LAW REPORTS ALLAHABAD SERIES
appointment on the post of Assistant
Teacher (Modern Subject/ Adhunik).

19. In view of above, the answer to
the question no. 1, is that the petitioner is
not qualified for the post of Assistant
Teacher (Modern Subject/Adhunik).

20. In view of the aforesaid, the
petitioner is not entitled to the salary from
the State Exchequer.

21. Thus, the writ petition for the
relief sought is misconceived and hence
dismissed accordingly.

22. No order as to to costs.
----------
(2020)03-05ILR A802
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.05.2020

BEFORE

THE HON'BLE CHANDRA DHARI SINGH, J.

Service Single No. 9184 of 2018
connected with
Service Single No. 883 of 2018 & Ors.

Lakshman Singh & Ors ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Gaurav
Mehrotra,
Anamita
Srivastava,
Santosh Kumar Tripathi, Shreya Prakash

Counsel for the Respondents:
C.S.C.

(A) Civil Law- Appointment - court would
have
the
right
to
regularize

an
appointment made only after following
the due procedure, even though, a non
fundamental element of that process or
procedure has not been followed - this
right would not extend to direct that an
appointment made in clear violation of the
constitutional scheme and statutory rules
can be treated to be permanent
Writ Petition Disposed of. (E-10)

List of cases cited:

1. St. of U.P. & anr. Vs. Dalla Ram & ors. Writ
Petition No. 1/SB/2013

2. Secretary, St. of Karn. & ors. Vs. Umadevi
and ors (2006) 4 SCC 1

3. National Fertilizers Ltd. & ors. Vs. Somvir
Singh (2006) 5 SCC 493

4. St. of Orissa & ors. Vs. Mamata Mohanty
(2011) 3 SCC 436

5. St. of Hary. Vs. Piara Singh & ors. (1992) 3
SCR 826

6. Dr. M.S. Mudhol and ors. Vs. S.D. Halegkar &
ors. (1993) 3 SCC 591

7. Rekha Chaturvedi (Smt.) Vs. State of
Rajasthan & ors. 1993 Supp (3) SCC 168

8. St. of U.P. & anr. Vs. Anand Kumar & ors.
(2018) 13 SCC 560

(Delivered by Hon'ble Chandra Dhari
Singh, J.)

1. Since similar question of facts and
law are involved in the bunch of writ
petitions, therefore, they are being decided
by this common order.

2. By means of bunch of writ
petitions the petitioners have challenged the
order passed by learned Advocate General
vide which appointment of the petitioners
have been cancelled and their services have
been terminated with immediate effect.

3. In Writ Petition Nos.883 (SS) of
2019, 3047 (SS) of 2018, 3402 (SS) of
3-5 All. Lakshman Singh & Ors. Vs. State of U.P. & Ors.
803
2018, 3880 (SS) of 2018 & 4634 (SS) of
2018, the petitioners have challenged order
dated 22.12.2017 by means of which
appointment order of the petitioners has
been cancelled and their services have been
terminated with immediate effect.

4. The background facts in which
Writ Petition No.9184 (SS) of 2018 has
been filed are briefly stated as under:-

(i) Petitioners are Class - IV
employees and were working on the post of
Peon (Anusewak) in the office of Chief
Standing Counsel of High Court of
Judicature
at Allahabad
as
well
as
Lucknow. While Petitioners No.1 to 4 were
working on the post of Peon (Anusewak) in
the office of Chief Standing Counsel at
Lucknow and Petitioners No. 5 & 6 were
working as Peon (Anusewak) in the office
of Chief Standing Counsel at Allahabad.
Petitioners No.1, 3 & 5 belong to General
Category, Petitioners Nos. 2 & 4 belong to
Other Backward Category and Petitioner
No.6 belongs to Scheduled Caste Category.

(ii) In year 2013, in the office of
Respondent No.2 and State Law Officers
(Establishment), several posts in Class - III
category namely Stenographers, Assistant
Review Officers and Computer Assistants as
well as posts of Class - IV employees were
lying vacant. Those posts were duly sanctioned
in accordance with the procedure prescribed in
the statute. Vide order/letter dated 18.06.2013
issued by Special Secretary (Law), Government
of U.P. to Chief Standing Counsel of this Court
at Allahabad and Lucknow, it was requested to
make available the proposal to the State
Government for appointment of Stenographers
and other staffs in the office of Chief Standing
Counsel in compliance of judgment and order
dated 09.04.2013 passed in Writ Petition No. 1
(S/B) of 2013 (State of U.P. & Anr. Vs.
Dallaram & Anr.). In pursuance of the said
letter, the decision to fill up the aforesaid
vacancies was taken by the then learned
Advocate General.

(iii)
In
another
order
dated
25.11.2013 passed in Writ Petition No.7155
(MB) of 2008 (C/M Dhirja Devi Ram Adhar
Kanya Inter Colleve V. State of U.P. & Ors.),
the Division Bench of this Court passed the
following orders:-

"Earlier, this Court had directed to
send the record of listed cases to different
counsel according to allocation of work.

Learned Standing Counsel pointed
out that the records of the cases listed are not
being sent by the CSC Office to them.

Today, the record of this case has not
been sent by the CSC office, due to which the
learned Standing Counsel is unable to argue
the case.

Learned counsel for the petitioner
submits that since last two dates, the record of
this case is not made available with the learned
Standing Counsel. Hence, arguments could not
be held.

There appears mismanagement of
the CSC office.

List/put up on 28.11.2013. On the
said date, Principal Secretary (Law) shall
appear in person before this Court to show
cause as to why an adverse entry may not
be entered in his character roll for failing
to administer the office of Chief Standing
Counsel and also for failing of non
compliance of earlier direction issued by
this Court which also amounts to a
contempt. He shall also a show cause as to
why a contempt proceeding may not be
initiated against him for non complying
with the order passed by this Court in not
providing
requisite
infrastructure
and
assistance to this Court.

Principal Secretary (Law) be
informed forthwith by learned Standing
Counsel as well as Register of this Court
for compliance.
804 INDIAN LAW REPORTS ALLAHABAD SERIES

Learned Standing Counsel shall
also produce the copy of order passed
earlier by the Division Bench of this Court
by which certain directions were issued to
the authority concerned on the date fixed.

List on 27.11.2013."

(iv) Pursuant to the aforesaid
order(s), the Division Bench expressed
annoyance against the State Government
regarding
non-providing
of
requisite
infrastructure
in
the
Chief
Standing
Counsel office. Thereafter, a decision was
taken
by
respondent
no.2/Advocate
General, Uttar Pradesh to fill up the vacant
posts in the Chief Standing Counsel office
and for the said purpose, Notice No.737(3)
dated 10.12.2013 was issued by Officer on
Special Duty (O.S.D) in the office of
respondent no.2 inviting applications from
the eligible candidates for filling up
vacancies on those posts on ad-hoc basis.
The said notice was duly circulated and the
same was also pasted on the notice boards
in the office of Chief Standing Counsel of
this Court at Allahabad and Lucknow.

(v) As per the aforesaid notice,
last date for submitting the applications
was 30.04.2014. The petitioners came to
know about the aforesaid vacancy in the
office of respondent no.2 and State Law
Officers (Establishment). They applied for
the said posts as they were eligible.

(vi) A three members selection
committee was constituted for appointment
on Class - IV posts of Peon (Anusewak)
headed by the then Government Advocate
at Lucknow. The other members were the
then Chief Standing Counsel at Lucknow
and the Standing Counsel at Lucknow. An
interview took place on 18.06.2014 for the
posts of Peon (Anusewak) and the
petitioners succeeded in the said interview.
After completing the interview, a select list
was prepared and the selection committee
sent
its
report/recommendation
on
19.06.2014
to
respondent
no.2
for
appointment of selected candidates.

(vii) On the basis of the aforesaid
select
list,
vide
office
order
dated
20.06.2014, a composite appointment letter
on the post of Peon (Anusewak) was issued
to the petitioners.

(viii)
In
furtherance
of
the
aforesaid
appointment
order/letter,
petitioners no.1 to 4 served their joining on
the same day i.e. 20.06.2014 at the office of
Chief Standing Counsel at Lucknow,
petitioner no.5 served his joining on
01.07.2014 and petitioner no.6 served his
joining on 20.06.2014 at the office of Chief
Standing Counsel at Lucknow. Since then
they were performing their duties till
issuance of the impugned order dated
22.03.2018.

5. In Writ Petitions No.4520 (SS) of
2017 and Writ Petition No.5198 (SS) of
2017, the petitioners have prayed for a writ
in the nature of mandamus directing the
respondents to release the petitioner's salary
as well as pay arrears of salary w.e.f. July,
2014.

6. The Government of U.P. in
pursuance of provisions of Clause (3) of
Article 348 of Constitution of India notified
the U.P. Advocate General and Law
Officers Establishment Service rules, 2009
(hereinafter referred as ''2009 Rules') on
11.11.2009. On 15.12.2009, the 2009 Rules
was amended making amendments in Rule
25(2) and in appendix. The second
amendment was made in rules 15 & 16 of
2009 Rules on 19.01.2010. By way of third
amendment in 2009 Rules, Rule 31 was
inserted on 10.02.2010.

7. In the year 2014, a complaint was
made by an Additional Advocate General at
Allahabad questioning the appointments of
3-5 All. Lakshman Singh & Ors. Vs. State of U.P. & Ors.
805
Assistant Review Officers. On the said
complaint,
the
Chief
Secretary,
Government of U.P. wrote a letter dated
26.06.2014 to Principal Secretary (Law),
Government of U.P. instructing therein that
there is ban on appointments, hence
appointments of Assistant Review Officers
is against the appointment policy of the
State. The said letter was modified vide
order dated 15.07.2014 by the Chief
Secretary, Government of U.P. It is also
alleged in the instant proceedings that the
services of the employees which were
appointed on ad-hoc basis were regularised
vide order dated 28.07.2014. An inquiry
was instituted vide order dated 11.08.2014
issued by Special Secretary, Department of
Law, Government of U.P. to inquire about
the legality and validity of order dated
28.07.2014.

8. On 13.04.2015, the inquiry report was
submitted by Government Advocate, Lucknow
stating therein that appointments made by
respondent no.2 were proper and valid, and
were in accordance with law. It was also stated
in the said inquiry report that order of
regularisation of the employees of Class - III
and Class - IV posts issued by respondent no.2
was also valid and in accordance with law.

9. Further, another inquiry report dated
23.05.2016 was submitted by Additional
Advocate General, relevant portion of which is
quoted hereinbelow for ready reference:-

"....................

After looking into all the documents
on
record
and
giving
a
thoughtful
consideration, do not find any discrepancy in
either the selection process or in respect of any
laxity in the educational qualifications or
eligibility criterion and while making the
appointments due care and caution was taken
by both the Selection Committee and by the
then Advocate General, U.P.

I am of the opinion that since no
regular appointment had been made since
the year 2010 and a large number of
vacancies were available in the Office of
the Advocate General both at Lucknow and
Allahabad and looking to the interest of
work, the then Advocate General had taken
a decision to make appointment on different
posts of Class III and Class IV category.

At this juncture, I would also like
to mention that a bench comprising of
Hon'ble Mr. Justice D.P. Singh and Hon'ble
Mr. Justice Arvind Kumar Tripathi (II) in
the case of State of U.P. And another Versus
Dalla Ram and another (Writ Petition
No.1/SB/2013), had strongly recommended
to make appointments in the office of
Advocate General, U.P., so that it functions
in a proper and better manner and that
being the necessity and need of the hour,
the Advocate General thought it proper to
make adhoc appointments at that point of
time. It will also be not out of place if it is
mentioned here that all the incumbents
whose adhoc appointments were made in
the year 2014 have been working since then
but are not getting their salary and
emoluments which is not in accordance
with Constitutional requirements.

Hence, I conclude by saying that
since appointments have been done in
accordance with law and due to the
exigencies of work interest and also in the
light of the directions given by the Hon'ble
High Court in the case of State of U.P. And
another Versus Dalla Ram and another
(Writ Petition No.1/SB/2013) and also
because the incumbents on the post in
question have been working since 2014, the
appointments made may be treated as legal
and salary may be paid to the persons who
are still working."
806 INDIAN LAW REPORTS ALLAHABAD SERIES

10. Supplementary report/reply dated
12.09.2016 was also submitted, relevant
portion of which is quoted hereinbelow:-

".......................

In view of the judgment and order
dated 25.11.2013 passed by the Hon'ble Court
and looking into the exigencies of work
selection and appointment was carried out and
while making the aforesaid selection and
appointment, due process was adopted as to
why the proposal was not send to the
government for relaxation in terms of the
government order dated 15.03.2012 was not
taken is not within my knowledge. Moreover, I
have been asked to submit a report in this
regard vide order dated 26.10.2015 specially
provide that I should give an enquiry report in
respect of the appointment made of the ExAdvocate General Sri Vinay Chandra Mishra,
in the office of Advocate General U.P./State
Law Officers on the post of 6 Assistant Review
Officers, 7 Stenographers and 6 Class IV
employees.

Dear Sir, since the queries now
raised are not a part of the original reference
order on which I had submitted by Enquiry
report, these queries are of no relevance.

(ii) That the order passed in the case
of State of U.P. and others Vs. Dalla Ram and
others related to present issue but since the
Hon'ble Court in taken to the office that there
was shortage of staff in the office of Advocate
General, U.P./State Law Officers and he should
issue certain directions and the Advocate
General has acted in the light of the aforesaid
order dated 25.11.2013 passed by the Hon'ble
High Court and no Special Appeal has been
preferred against the aforesaid judgment, hence
the judgment and order passed by the Hon'ble
High Court is of much relevance and needs to
be implemented.

(iii) Third query as to why the
advertisement
was
not
issued
for
selection/appointment again cannot be clarified
at my end as I was never a part of the selection
committee, as it is not a part of the reference
order dated 26.10.2015 by which I was
appointed as the inquiry officer to enquire into
the appointment made by the then Advocate
General, U.P. On the post of Assistant Review
Officer, Stenographers and Class IV employees.
However, it may be clarified that the selection
process undertaken at the end of the then
Advocate General O.P. Is not taking any as I
had already stated in my earlier enquiry report
dated 23.05.2016."

11. Vide order dated 22.12.2017,
respondent no.2 terminated the services of
the
petitioners.
Vide
order
dated
03.02.2018, respondent no.2 modified the
said termination order dated 22.12.2017 of
the
petitioners.
Finally,
order
dated
22.03.2018 was passed terminating the
services of the petitioners on the basis that
appointments of the petitioners were
contrary to the provisions of 2009 Rules
and their services were regularised in
contravention of the provisions of the said
rules.

12. Mr. Gaurav Mehrotra, learned
counsel appearing for the petitioners in
Writ Petition No.9184 (SS) of 2018 has
submitted that the appointing authority i.e.
Advocate General was fully justified in
making appointment on Class - III and
Class - IV posts by merely resorting to the
procedure prescribed in Sub-Rule 2 of Rule
14 of 2009 Rules. It is submitted that the
situation occurred due to the decision and
observation made by Division Bench vide
order dated 09.04.2013 (supra) vide which
the Division Bench expressed their concern
on the functioning of the office of Advocate
General of the State and submitted that due
to non-availability of the sufficient staff,
the Advocate General as well as Chief
Standing Counsel(s) are not able to get the
3-5 All. Lakshman Singh & Ors. Vs. State of U.P. & Ors.
807
paper-book prepared, therefore, they were
not able to assist the Court properly.

13. It is further submitted that in view
of the observations, as mentioned above,
the Advocate
General
appointed
the
petitioners on their respective posts after
following the procedure prescribed in 2009
Rules. It is also submitted that a selection
committee was constituted for selection of
the petitioners on their respective posts.
Examination was conducted and the
committee recommended the names of the
eligible candidates for appointment as they
were
found
eligible.
On
the
said
recommendation, select list was prepared
and as per the said list, the petitioners were
appointed on their respective posts.

14. The learned counsel for the
petitioners has submitted that when the
complaint regarding appointment of the
petitioners were received, an inquiry
committee was constituted and inquiry was
conducted, and a report was submitted by
the inquiry officer on 13.04.2015. In the
said report it has been mentioned that
statements of all employees were recorded
by the enquiry officer. Ultimately, the
euquiry officer recorded that he also had a
telephonic conversation with the then
Advocate General, during whose tenure the
appointments in question were made. The
then
Advocate
General
gave
his
explanation that ad-hoc appointments were
made in exigency of service on account of
directions issued by this Hon'ble Court as
also keeping in view the extreme shortage
of Class - III and Class - IV employees in
the office of Advocate General and State
Law Officers. The appointments were made
after getting the notice pasted on the notice
board and after constituting selection
committee
for
selection,
on
whose
recommendation the selections were made.
Ultimately, the enquiry officer opined that
stricto sensu would apply only in regular
appointments
and
not
in
ad-hoc
appointments. The enquiry officer further
opined that the Hon'ble Court had issued
direction to the State Government to
sanction appropriate posts of Class - III and
Class - IV employees which were never
sanctioned, thus in view of the shortage of
employees, excessive work load and
directions of this Hon'ble Court, as an
emergent situation, the then Advocate
General made appointments on ad-hoc
basis. Even, Chief Secretary modified his
earlier letter on 15.07.2014 making it clear
that the ad-hoc appointments made by the
then Advocate General were in accordance
with rules.

15. The learned counsel has further
submitted that the Advocate General vide
its Letter No.56 PS AG UP-15 dated
14.04.2015 categorically opined that "from
the records it is clear that all the persons
who were appointed possessed requisite
qualifications
and
they
have
been
discharging their duties for about one year
and as far as their performance is good,
they may be allowed to continue till regular
selection is made in accordance with law".

16. Thereafter, second inquiry was
directed by the State Government regarding
the appointment of the petitioners which
was conducted by Additional Advocate
General, Government of U.P., Lucknow.
The second inquiry report dated 23.05.2016
was submitted by the inquiry officer i.e.
Additional Advocate General. The inquiry
officer during the course of inquiry went
through the records in great detail and
found that several posts including the posts
of Class - IV employee duly sanctioned,
were vacant in the office of Advocate
General and State Law Offices, thus a
808 INDIAN LAW REPORTS ALLAHABAD SERIES
decision was taken by the then Advocate
General keeping in mind the interest of the
institution and the aforesaid posts were
filled on ad-hoc basis for which notice was
circulated on 10.12.2013. Large number of
persons applied for the same. It was also
mentioned in the said inquiry report that the
selection committee recommended the
names of the petitioners, on being found
eligible, for appointment on their respective
posts.

17. It is specifically mentioned in the
second inquiry report that on the basis of the
documents, the inquiry officer found that there
was no discrepancy either in the selection
process or laxity in educational qualifications or
eligibility criteria, thus he concluded that
appointments had been done in accordance with
law and in exigencies of work interest and also
in light of directions of this Court.

18. It is further submitted that the
petitioners, who were appointed on ad-hoc
basis, were appointed on their respective posts
due to exigency of service by the appointing
authority exercising its discretion in view of the
emergent situation which had emerged on
account of directions issued by this Hon'ble
Court vide orders dated 09.04.2013 and
25.11.2013 as also on account of acute shortage
of staff in the office of Advocate General and
State Law Officers. Though the notice could not
be advertised in the news paper and
employment exchange, but the notice was duly
circulated by pasting the same on the notice
board as prescribed in Rule 14(ii) of 2009
Rules. In such circumstances, appointment of
the petitioners on ad-hoc basis cannot be faulted
with or is not contrary to the provisions.

19. Learned counsel has fairly submitted
that the petitioners had been working on ad-hoc
basis on their respective posts for last several
years after facing a proper selection process as
per rules. There is also no allegation that the
petitioners are not qualified or eligible
candidates for their respective posts. The only
allegation is that the selection was made in
contravention of certain provisions of 2009
Rules.

20. It is also submitted that the procedure
prescribed for selection was completely
followed with and from the date of appointment
till issuance of the impugned termination order,
the petitioners continuously discharged their
duties even thereafter there is deeming legal
fiction of continuance of service of the
petitioners on their respective posts in view of
interim order dated 30.03.2018 passed by this
Court in Writ Petition No.9184 (SS) of 2018.

21.

Learned
counsel
for
the
petitioners has submitted that it is not the
case of the respondents that the petitioners
have committed any kind of forgery or
misrepresentation for procuring the job or
that the petitioners do not possess the
requisite qualification for Class - III and
Class - IV posts. On the contrary, the
appointing authority after going through the
records has explicitly held that the
petitioners
possess
the
requisite
qualifications, therefore, the petitioners
undoubtedly deserve to be continued on
their respective posts at least till regular
selections are made in accordance with
2009 Rules.

22.

Learned
counsel
for
the
petitioners in their respective other writ
petitions have adopted the arguments
advanced by Shri Gaurav Mehrotra, learned
counsel
appearing
for
Writ
Petition
No.9184 (SS) of 2018.

23. Per contra, Mr. H.P. Srivastava,
learned Additional Chief Standing Counsel
appearing for opposite parties no.2 to 4 has
3-5 All. Lakshman Singh & Ors. Vs. State of U.P. & Ors.
809
vehemently
opposed
the
submissions
advanced by learned counsel for the
petitioners
and
submitted
that
the
appointment was made on ad-hoc basis and
the same is nothing but a fortuitous
appointment, which does not create any
right to the incumbents appointed on adhoc basis. It is submitted that they do not
have any right to continue in service and
their services can be terminated at any
point of time without assigning any reason.
The procedure for direct recruitment for the
post of Peon has been laid down in Rule 16
of 2009 Rules. It is submitted that 2009
Rules was amended in the year 2010. The
same is known as "Uttar Pradesh Advocate
General and Law Officers Establishment
(2nd Amendment) Rules, 2010."

24. It is submitted that Rule 14 of
2009 Rules envisages two things; firstly,
determination of the number of vacancies
to be filled during the course of the year of
recruitment as also the number of vacancies
to be reserved for candidates belonging to
SC/ST and OBC category. Secondly, wide
publication of the vacancies through
advertisement in daily newspaper having
wide circulation and through other means.
The procedure relating to a fair and ethical
appointment as well as the rules laying
down the procedure to be followed in
making an appointment to a public post
were all given a go bye and in disdainful
manner contrary to the applicable rules,
appointment of the petitioners and other
similarly situated incumbents were made in
an arbitrary and whimsical manner.

25. Learned counsel for opposite
parties no.2 to 4 has pointed out illegalities
in appointment of the petitioners i.e.,
without
determination
of
number
of
vacancies to be filled during the course of
the year of recruitment and without
determining the number of vacancies
reserved for candidates belonging to SC/ST
and OBC category, which is contrary to
Rule 14 of 2009 Rules. It is further
submitted that the appointment was made
without notifying the vacancies to be filled
by
direct
recruitment
by
issuing
advertisement in daily newspapers having
wide
circulation
and
also
such
appointments were made without adhering
to a fair, transparent and non-exploitive
process of selection.

26. Learned counsel for opposite
parties no.2 to 4 has invited attention
towards Para - 12 of counter affidavit dated
24.04.2018 and submitted that on a
complaint, a show-cause notice dated
27.10.2017 was issued by opposite party
no.2 calling upon the petitioners to showcause as to why in the absence of a fair,
transparent and non-exploitive process of
their appointments, their appointments be
not cancelled and their services be not
terminated. By way of aforesaid showcause notice, a reply was called from the
petitioners and other similarly situated
incumbents to furnish the evidence on the
points which are mentioned in Para - 12 of
the counter affidavit. It is further submitted
that the petitioners failed to provide even a
single document leading to the conclusion
that no publication was issued inviting
applications for filling up the vacancies
through direct recruitment and making
vacancies known to public at large in
consonance with Articles 14 & 16 of the
Constitution of India.

27. It is also established that no
interview letters were issued to the
petitioners, no final list of meritorious
candidates was prepared, examination was
not conducted and also no candidates from
the open market participated in the
810 INDIAN LAW REPORTS ALLAHABAD SERIES
selection process, as no advertisement was
published in the newspaper and no effort
had been made to circulate the vacancies in
the public at large.

28. Learned counsel for opposite parties
no.2 to 4 has submitted that some documents,
which are annexed in the writ petition, are
fabricated and also not available on the records
of the opposite parties. It is also submitted that
some documents were
forged by the
petitioners. Learned counsel for opposite
parties no.2 to 4 has invited attention towards
Para - 24 of the counter affidavit and
submitted that fraudulent purported notice has
been issued under signature of one Poonam
Kaushik, who had no authority to issue any
such notice as not being a Gazetted Officer.

29. The file of the petitioners for
regularisation was never put up before the then
learned
Advocate
General
by
the
Establishment Section of the Advocate
General Office, Allahabad nor order dated
28.07.2014 has been issued or passed through
the Establishment Section of the Advocate
General Office, Allahabad. The dispatch
register at Advocate General Office at
Allahabad also does not record any entry
relating to issuance of the purported fabricated
order of regularisation dated 28.07.2014.

30. The learned counsel for
opposite parties no.2 to 4 has submitted
that it is a settled legal proposition that
no person can be appointed even on a
temporary or ad-hoc basis without
inviting applications from all eligible
candidates. If any appointment is made
by merely inviting names from the
Employment Exchange or putting a note
on notice board etc., that will not meet
the requirement of Articles 14 & 16 of
the Constitution of India. Such a course
violates the mandates of Articles 14 &
16 of the Constitution of India as it
deprives the candidates who are eligible
for the post, from being considered. A
person employed in violation of these
provisions is not entitled to any relief
including salary. For a valid and legal
appointment, mandatory compliance of
the said constitutional requirement is to
be fulfilled. It is further submitted that
equality clause enshrined in Article 16
of the Constitution of India requires
that every such appointment be made by
an open advertisement as to enable all
eligible persons to compete on merits.

31. It is submitted that in the
instant case it is crystal clear that no
procedure has been adopted in the
appointment of the petitioners and
similarly situated other incumbents and
their appointment is sheer violation of
the provisions of the applicable statutes.
In
such
circumstances,
the
entire
appointment is illegal, contrary to the
provision and deserves to be set aside.

32. The learned counsel has futher
submitted that the learned Advocate
General vide orders dated 22.12.2017
and
22.03.2018
have
already
terminated/cancelled the appointment of
27
employees
after
affording
due
opportunity of hearing. It is submitted
that
appointment
of
all
the
27
employees, who have been terminated,
was found illegal, against the procedure
prescribed in the Rules and their
regularisation of ad-hoc services was
also found illegal, therefore, there is no
illegality or any arbitrariness in the said
termination order. The instant writ
petitions
filed
by
the
petitioners/employees have no merit
and
therefore,
the
same
may
be
dismissed with cost.
3-5 All. Lakshman Singh & Ors. Vs. State of U.P. & Ors.
811

33. The parties exchanged affidavits
in their respective writ petitions, which are
available on record.

34. I have heard learned counsel for
the parties and perused the materials
available on record in all the abovementioned writ petitions.

35. In the instant proceedings, the
following issues for consideration are
involved:-

"(I) whether the appointment of
the petitioners is in violation of Rule 14(i)
and 14(iii) of U.P. Advocate General and
Law Officers Establishment Service rules,
2009
by
not
issuing/publishing
advertisement in the daily newspapers and
by
not
notifying
vacancies
in
the
Employment Exchange?

(II) whether the impguned order
dated
22.03.2018
terminating
the
petitioners from the services has been
issued mechanically, arbitrary and without
following the procedure contained in the
concerned service rules 2009 as well as
violative of principle of natural
 justice?

(III) whether the petitioners who
have alreeady put in long service on their
respective posts from the date of their
appointment till issuance of impugned
order dated 22.03.2018 and even thereafter,
in view of the deeming legal fiction of
continuance in view of the interim order
dated 30.03.2018 staying the operation and
implementation of the impguned orders of
termination, deserve to continue on their
respective posts at least till the regular
selection?"

36. The relevant provisions of 2009
Rules are reproduced here-under:-

PART-IV- QUALIFICATIONS

8. A candidate for recruitment to
the various posts in the service must
possess the following qualifications:

(i) Routine Grade Clerk
Must
have passed the Intermediate examination

of the Board of
High School and Intermediate

Education, Uttar Pradesh or
a qualification

recognised by the Government as
equivalent

thereto
and must possess minimum speed of 30

words per minute
in English Typing or 25 words

per minute in Hindi Typing.

Preference will be
given for the working

knowledge of computer application.

(ii) Sahayak Samiksha
 Adhikari/Sahayak
Samiksha
Adhikari
(Record)Must possess Bachelor's degree of
a

University
established by law in India or a

qualification recognised by
the Government as

equivalent thereto and minimum speed
of 30

words
per
minute in English typing or 25 words

per minute in Hindi
Typing. Good knowledge of

Computer
Application
is
essential.

(iii) Stenographer
Must possess
Bachelor's degree of a University

established by law in India
or a qualification

recognised by the Government as
equivalent

thereto
und minimum speed of 100 words per

minute
in
English
shorthand and 30 words per

minute in English typing or 80
words per minute

in
Hindi shorthand and 25 words per minute
812 INDIAN LAW REPORTS ALLAHABAD SERIES
in

Hindi typing. Good
knowledge of Computer

Application is essential.

(iv) Cataloguer

Bachelor's
degree
in
Law
and
Diploma in

Library
Science from a University established

by law in India. Good
knowledge of Computer

Application is essential.

(v) Routine Grade Clerk

(Accounts)

B.Com
with
Accountancy as a subject. Good

knowledge of Computer is
essential.

(vi) Computer Operator

Grade A

Must
possess
Bachelor's degree of a University

established by law in India
or a qualification

recognised by the Government as
equivalent

thereto
and diploma in Computer Science from a

recognised
Institution/"O" level Certificate from

D.O.E.A.C.C.

Three
years
experience in the field of Computer

Application is essential.

(vii) Assistant Computer

\ Operator

Must possess
Bachelor's Degree of a University

established by law in
India or a qualification

recognised
by
the
Government
equivalent

thereto
and diploma in Computer Science from a

recognised
Institution/'0" level Certificate from

D.O.E.A.C.C.

Two
years
experience in the field of Computer

Application is essential.

(viii) Peon

 (Anusewak/Chowkidar/

Bundle

Lifter/Farrash)

Must
have passed class VIII examination.

(ix) Sweeper

Must
have
passed Class V examination.

(x) Mali

Must have passed
class VIII examination with experience of
five years as Mali.

(xi) Electrician

Must
possess certificate from a recognised
Industrial Training Institute in Electrical
Trade.

(xii) Photostat Operator
Must
have passed class VIII examination and
must possess experience of five years in
operating photostat machine.

 PART-V-PROCEDURE FOR
RECRUITMENT

14. Determination of vacancies.-

The appointing authority shall
determine the number of vacancies to be
filled during the course of the year of
recruitment
as
also
the
number
of
vacancies to be reserved for candidates
belonging to Scheduled Castes, Scheduled
Tribes and other categories under Rule 6.
The vacancies to be filled by direct
recruitment shall be notified in the
following manner:--

(i) by issuing advertisement in
daily newspaper having wide circulation;

(ii) by pasting the notice on the
notice board of the office or by advertising
through
Radio/Television
and
other
employment newspapers; and

(iii) by notifying vacancies to the
Employment Exchange.

15.
Procedure
for
direct
recruitment for the posts of Routine Grade
Clerk,
Sahayak
Samiksha
Adhikari/Sahayak
Samiksha
Adhikari
(Record),
Stenographer,
Cataloguer,
Routine
Grade
Clerk
(Accounts),
Computer
Operator
Grade
'A'
and
Assistant Computer Operator.--
3-5 All. Lakshman Singh & Ors. Vs. State of U.P. & Ors.
813

Direct recruitment to the posts of
Routine Grade Clerk, Sahayak Samiksha
Adhikari/Sahayak
Samiksha
Adhikari
(Record),
Stenographer,
Cataloguer,
Routine Grade Clerk (Accounts), Computer
Operator
Grade
'A'
and
Assistant
Computer Operator in the service shall be
made in accordance with the provisions of
the Uttar Pradesh Procedure for Direct
Recruitment for Group 'C' Posts (Outside
the Purview of the Uttar Pradesh Public
Service Commission) Rules, 2002, as
amended from time to time.

16.
Procedure
for
direct
recruitment
for
the
posts
of
Peon
(Anusewak), Chowkidar, Bundle Lifter,
Farrash, Sweeper, Mali, Electrician and
Photostat Operator.--

Direct recruitment to the posts of
Peon
(Anusewak),
Chowkidar,
Bundle
Lifter, Farrash, Sweeper, Mali, Electrician
and Photostat Operator in the service shall
be made in accordance with the provisions
of the Group 'D' Employees Services Rules,
1985, as amended from time to time.

17. Procedure for recruitment by
promotion to the posts other than the posts
of Routine Grade Clerk, Zamadar and
Daftari.--

(1) Recruitment by promotion
shall be made on the basis of the criterion
laid
down
in
the
Uttar
Pradesh
Government
Servants
Criterion
for
Recruitment by Promotion Rules, 1994, as
amended from time to time, through the
Selection
Committee
constituted
in
accordance with the provisions of the Uttar
Pradesh
Constitution
of
Department
Promotion Committee for Posts Outside the
Purview of the Service Commission Rules,
1992, as amended from time to time.

NOTE- Nomination of officers
for giving representation to the Scheduled
Castes,
Scheduled
Tribes
and
other
backward classes of citizens in the
Selection Committee shall be made in
accordance with the order made under
Section 7 of the Act as amended from time
to time.

(2) The appointing authority shall
prepare eligibility lists of the candidates in
accordance
with
the
Uttar
Pradesh
Promotion by Selection (On Posts Outside
the
Purview
of
the
Public
Service
Commission) Eligibility List Rules, 1986,
as amended from time to time, and place
the same before the Selection Committee
along with their Character rolls and such
other records, pertaining to them, as may
be considered proper :

Provided that where there are two
or more feeding cadres :--

(a) bearing different pay scales
the candidates belonging to the cadre
bearing higher pay scale shall be placed
higher in the eligibility list.

(b) bearing same pay scale the
names of the candidates shall be arranged
in the eligibility list in order of their date of
substantive appointment in their respective
cadres. But if the dates of substantive
appointment of two or more candidates is
the same, then in such situation the
candidate who is older in age shall be
placed higher in the eligibility list.

(3) The Selection Committee shall
consider the cases of candidates on the
basis of records, referred to in sub-rule (2),
and, if it considers necessary, it may
interview the candidates also.

(4) The Selection Committee shall
prepare a list of selected candidates in
order of seniority as it stood the cadre from
which they are to be promoted and forward
the same to the appointing authority.

18. Procedure for recruitment by
promotion to the post of Junior Grade
Clerk.--

 by promotion to the post of
Routine Grade Clerk shall be made in
814 INDIAN LAW REPORTS ALLAHABAD SERIES
accordance with the provisions of the Uttar
Pradesh Subordinate Offices Ministerial
Group 'C' Posts of the Lowest Grade
(Recruitment by Promotion) Rules, 2001, as
amended from time to time.

19. Procedure for recruitment by
promotion to the post of Zamadar and
Daftari.--

(1) Recruitment by promotion to
the posts of Zamadar and Daftari in the
service shall be made on the basis of
seniority subject to the rejection of unfit
through a Selection Committee to be
constituted by the appointing authority.