# Lalvani v. N.M.Shah

- **Citation:** (2012) 2 ILRA 590
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-01
- **Bench:** Rakesh Tiwari, Het Singh Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lalvani-v-n-m-shah-42214
- **Pages:** 4

## Headnote

Constitution
of
India,
Article
226Retirement
benefitapplicant/respondent
working
as
contingent
Chowkidar
as
Casualemployer w.e.f. 29.00.89 while juniors
were
given
status
of
temporary
employee-G.O.
regarding
status
of
regular Status after completing 3 years
service-applicant/respondent retired on
14.07.99-denial
pensionary
benefitdirection
of
Tribunal
held
justifiedwarrant
no
interference-petition
dismissed.

Held Para: 12

Considering the facts and circumstances
of the case, we are of the considered
view that conclusions drawn by the
Tribunal in the impugned judgment and
order, do not suffer from any illegality
and infirmity, warranting interference in
extra ordinary powers under Art. 226 of
the Constitution.
2 All] Union of India and others V. Smt. Chandra Prabha Jain and others
591

## Text

590 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
has been sought and unless there is an
agreement of exchange between the parties,
there is no such power, vested with the
Assistant Collector, under the statute, to
compel a bhumidhar for exchange of his land
with another bhumidhar against his will. I am
of the view that conferment of right of
exchange of the land under Section 161 of
the Act read with relevant rules as detailed is
subject to convenience of both the parties to
the exchange and in the eventuality the
willingness of both the sides to exchange, the
Section 161 imposes duty upon the Assistant
Collector either to grant permission or to
refuse the same if the same is not
inconformity with the section 161 of the Act
and the rules 144 to 147 of the Rules.

15. Here in this case, a writ of
mandamus has been sought for by the
petitioner, which cannot be issued against the
statutory provision directing the authority
concerned to perform his duty which he is
not legally obliged to perform. It is well
settled that for issuing a writ of mandamus,
there must be a statutory duty imposed upon
the authority concerned and there is failure
on the part of that authority to discharge that
statutory obligation. Further, the person
seeking writ of mandamus must show that he
has a legal right to the performance of a legal
duty by the party, against whom mandamus
is sought. Reference may be given to the
judgment of the Apex Court in State of M.P.
Vs. G.C.Mandawar, AIR 1954 SC 493 and
Lekhraj
Sathramdas
Lalvani
Vs.
N.M.Shah,
Deputy
Custodian
Cum
Managing Officer, Bombay & Ors. AIR
1966 SC 333.

16. In view of the foregoing
discussions, no relief, as prayed, can be
granted to the petitioners. The writ petition is
dismissed. However, dismissal of the writ
petition will not preclude the petitioners to
file appropriate application in accordance
with law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.05.2012

BEFORE
THE HON'BLE RAKESH TIWARI, J.
THE HON'BLE HET SINGH YADAV, J.

Civil Misc. Writ Petition No. 5757 Of 2007

Union of India, through Director General,
Department of Posts,India, New Delhi
and others

 ...Petitioners
Versus
Smt. Chandra Prabha Jain and others

 ...Respondents

Counsel for the Petitioner:
Sri Harish Chandra Dubey

Counsel for the Respondents:
...............................................

Constitution
of
India,
Article
226Retirement
benefitapplicant/respondent
working
as
contingent
Chowkidar
as
Casualemployer w.e.f. 29.00.89 while juniors
were
given
status
of
temporary
employee-G.O.
regarding
status
of
regular Status after completing 3 years
service-applicant/respondent retired on
14.07.99-denial
pensionary
benefitdirection
of
Tribunal
held
justifiedwarrant
no
interference-petition
dismissed.

Held Para: 12

Considering the facts and circumstances
of the case, we are of the considered
view that conclusions drawn by the
Tribunal in the impugned judgment and
order, do not suffer from any illegality
and infirmity, warranting interference in
extra ordinary powers under Art. 226 of
the Constitution.
2 All] Union of India and others V. Smt. Chandra Prabha Jain and others
591
(Delivered by Hon'ble Rakesh Tiwari, J.)

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

2. This petition is directed against
judgment and order dated August, 2006
passed by the Central Administrative
Tribunal, Allahabad Bench, Allahabad in
Original Application No. 1331 of 1999,
Bhanu Prakash Jain Vs. Union of India and
others, by which the respondents were
directed
to
give
pensionary/terminal
benefits to applicant no. 1 ( widow of the
deceased original applicant), if such
benefits were made admissible to any of
the junior to him and in order to do so treat
the applicant as regularised one.

3. It appears from record that Bhanu
Prakash Jain approached the Tribunal by
filing O.A. no. 1331 of 1999, alleging that
he was initially appointed as contingent
paid Chowkidar in the year 1969 in
Firozabad Head Post Office. Later on the
post was redesignated as C.P. Farrash. He
continued working as C.P. Farrash but was
neither
regularised
nor
conferred
a
temporary status.

4. Pursuant to certain directions
issued
by
the
Apex
Court,
postal
department
had
framed
a
scheme
whereunder casual employees working on
29.11.1989 were conferred a temporary
status. Bhanu Prakash Jain was also
conferred
temporary
status
w.e.f.
10.1.1993 vide memo dated 4.1.1992
though juniors to him were conferred
temporary status w.e.f. 29.11.1989 vide
office
memo
dated
20.11.1991.
He
complained against discriminatory attitude
of the authorities in this regard. He retired
from service on 14.7.1999 after attaining
superannuation at the age of 60 years.
Though provident fund was released vide
order dated 6.8.1999 to him, but as the rest
of the claims admissible under the rules
were not paid, he prayed before the
Tribunal for a direction to the respondents
to provide pensionary/terminal benefits to
him as after conferment of temporary
status, a casual labour completing three
years is to be treated at par with temporary
status Group 'D' employees of the
department.

5. During pendency of the aforesaid
O.A.
Applicant-Bhanu
Prakash
Jain
expired
and
his
heirs
and
legal
representatives were substituted.

6. Claim of the applicant before the
Tribunal was opposed by the department
(petitioner in this petition), inter alia that
since he had not completed requisite period
after having been conferred temporary
status, hence he was not entitled to
pensionary benefits. According to the
department, conferment of temporary
status does not amount to a regular
appointment and services of the applicant
were never regularised.

7. After hearing the parties and on
perusal of the record, the Tribunal has held
thus:

There is no dispute on the point that
the
original
applicant
served
the
respondents for over a period of 30 years.
There is no successful denial of the fact
that his juniors were accorded temporary
status on 29.11.1989 and he was given that
status
w.e.f.
10.1.1993.
Even
after
10.1.1993, he served with new status for
more than six years. The original applicant
has
said
in
so
many
words
that
regularisation was the matter which rested
in the hands of respondents and he being
592 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
illiterate, had no control over the same nor
the means to know about all this.

What I consider just, in the facts and
circumstances of the case, is to ask the
respondents to grant pensionary benefits
/terminal
benefits
to
the
eligible
applicants, if such benefits were given to
any casual labourer, junior to the original
applicant in that category and for doing
the same to treat the original applicant as
regularised one.

So this O.A. Is finally disposed of
with a direction to the respondents to give
pensionary /terminal benefits to applicant
no. 1( widow of the deceased original
applicant), if such benefits were made
admissible to any of the junior to the
applicant (late Sri Jain) and in order to do
so shall treat him as regularised one. This
exercise shall be completed within a
period of four months from the date a
certified copy of this order is placed
before them."

8. Learned counsel for the petitioner
has assailed the order impugned on the
ground that as per the subsequent circulars
which he has not annexed with the present
petition, an employee having attained the
status of temporary employee, is entitled to
all
the
service
benefits
including
pensionary benefits on completion of three
years of service with temporary status but
only after regularisation of his services.
According to him, services of late Bhanu
Prakash Jain, having not been regularised,
he was not entitled for the relief granted by
the Tribunal.

9. The submission so made by the
counsel for petitioner is against his own
document i.e. copy of the circular dated
30.11.1992 issued by the Chief Post Mater
General, U.P. appended as annexure no. 5
to the writ petition, relevant extract of
which reads thus :

"Sub: Regularisation of Casual
Labourers

Vide this office circular letter no. 4595/87-SPB I dated 12.4.1991 a scheme for
giving
temporary
status
to
casual
labourers fulfilling certain conditions was
circulated.

2.
In
their
judgment
dated
29.11.1989, the Hon. Supreme Court
have held that after rendering three years
of continuous service with temporary
status, the casual labourers shall be
treated at par with temporary Group 'D'
employees of the department of Posts and
would thereby be entitled to such benefits
as are admissible to Group 'D" employees
on regular basis.

3.In compliance with the above said
directives of the Hon. Supreme Court it
has been decided that the Casual
Labourers of this department conferred
with temporary status as per the scheme
circulated in the above said circular no.
45/95/87-SPB-I dated 12.4.1991 be treated
at par with temporary Group 'D'
employees with effect from the date they
complete three years of service in the
newly acquired temporary status as per
the above said scheme. From that date
they will be entitled to benefits admissible
to temporary Group 'D' employees such
as :

All kinds of leave admissible to
temporary
employees,
Holidays
as
admissible to regular employees, Counting
of service for the purpose of pension and
terminal benefits as in the case of
2 All] C/M Public Intermediate College V. State of U.P. and others
593
temporary
employees
appointed
on
regular
basis
for
those
temporary
employees who are given temporary status
and who completed three years of service
in that status while granting them pension
and
retirement
benefits
after
their
regularisation.............."

10. From the aforesaid circular, it is
ample clear that in compliance of
directions issued by the Apex Court, policy
decision was taken by the department that
those casual labourers who have been
conferred with temporary status, are to be
treated at part with temporary group 'D'
employees on completion of three years of
service and terminal benefits would be
admissible to them as admissible to
temporary employees appointed on regular
basis. It is not in dispute that applicant
before the Tribunal was granted temporary
status w.e.f. 10.1.1993 and he retired from
service on 14.7.1999, after completing
more than three years of service as
required for the purpose.

11. So far as subsequent circulars
referred to by the counsel for petitioner but
not annexed with the petition, are
concerned, suffice it to say that any
departmental
circular
or
executive
instruction which is not in consonance with
the directive issued by the Apex Court, is a
nullity.

12. Considering the facts and
circumstances of the case, we are of the
considered view that conclusions drawn by
the Tribunal in the impugned judgment and
order, do not suffer from any illegality and
infirmity, warranting interference in extra
ordinary powers under Art. 226 of the
Constitution.

13. For all the reasons stated above,
the writ petition fails and is accordingly
dismissed, upholding the judgment and
order passed by the Tribunal. No order as
to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.05.2012

BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.

Civil Misc. Writ Petition No.8009 of 2011

C/M Public Intermediate College

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

Counsel for the Petitioner:
Sri Yogish Kumar Saxena

Counsel for the Respondents:
C. S. C.
Sri Sushma Devi

U.P. Intermediate Education Act-1921Section 16-G(7)-life of suspension orderif not approved or disapproved within 60
days-deemed
approved-generaly
misused by the authorities with collusion
of erring teacher-R-4-facing criminal
Trail for serious charges-injailed for 14
days and drawn salary of detention
period
also-adversely
affect
the
discipline of the Institution-DIOS take
appropriate decision within two weeksupon in action on part of DIOS-liberty
granted
to
approach
before
Joint
Director to look into the conduct of such
officer.

Held: Para 33

In the totality of the circumstances, a
direction is issued upon the District
Inspector of Schools to take decision in
accordance with law in the matter of