# Mohd. Naseem Ansari v. State of U.P. and others

- **Citation:** (2003) 3 ILRA 812
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-07-04
- **Case number:** Civil Misc. Writ Petition No. 21651 of 2001
- **Bench:** Vineet Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-naseem-ansari-v-state-of-u-p-and-others-40208
- **Pages:** 4

## Headnote

Constitution of India Article 226- oral
termination
contractual
employee
of
corporation working for more then three
years
claiming
regularisation.
Heldappointment not made on substantive
Post can not claim regularisation in
absence of Policy for regularisation.

Held-Para 6

The appointment letter of the petitioner
on contractual basis clearly indicates
that he was engaged for a certain period
and thereafter he had no right of
employment
of
any
post
with
the
respondents-Corporation.
His
appointment not having been made on
any substantive post, he cannot claim
regularization. Learned counsel for the
petitioner has not been able to place any
policy of the Corporation under which he
is
claiming
regularization.
On
the
contrary it is the specific case of the
respondents that the U.P. Government
had issued Government Orders, which
strictly prohibited the creation of any
post
during
the
financial
year
in
question. In the absence of any policy for
regularization
of
service,
the
relief
prayed
for
cannot
be
granted.
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3 All] Mohd. Naseem Ansari V. State of U.P. and others
813

## Text

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812 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
is neither here or there. No one is above
the law. These so called educated and
affluent persons have committed gross
violation
of
the
law
by
making
constructions on the green belt without
any sanctioned lay out plan. If this is
permitted it will send a wrong signal that
the Rules and Regulations exist only on
paper and are not to be taken seriously.
This Court cannot countenance such a
state of affairs. The Rule of Law
postulates that every one however mighty
he may be, should be under the law. "Be
you ever so high, the law is above you."

17. In this case by making such
illegal constructions in the green belt the
law has been thrown to the winds. This
court cannot accept this state of affairs.
No constructions can be permitted to
continue any longer in the green belt, and
even a map for construction cannot be
sanctioned there.

18. The respondents are directed to
forthwith demolish all the constructions
including those of the members of the
petitioner society in the green belt area of
Agra forthwith with an iron hand, without
any pick or choose. No leniency must be
shown in this matter. The petition is
dismissed, and interim order is vacated.

19. Let the Registrar General of this
Court send copy of this judgment
forthwith to the Commissioner, Agra
Division, the District Magistrate, Agra
and
the
Vice
Chairman,
Agra
Development Authority who will ensure
strict compliance of this judgement.
Copy of this order will be supplied to the
learned Standing Counsel free of charge
today and he will communicate it to these
authorities.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 4.7.2003

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 21651 of 2001

Mohd. Naseem Ansari
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri K.S. Misra

Counsel for the Respondents:
Sri Rakesh Pande
C.S.C.

Constitution of India Article 226- oral
termination
contractual
employee
of
corporation working for more then three
years
claiming
regularisation.
Heldappointment not made on substantive
Post can not claim regularisation in
absence of Policy for regularisation.

Held-Para 6

The appointment letter of the petitioner
on contractual basis clearly indicates
that he was engaged for a certain period
and thereafter he had no right of
employment
of
any
post
with
the
respondents-Corporation.
His
appointment not having been made on
any substantive post, he cannot claim
regularization. Learned counsel for the
petitioner has not been able to place any
policy of the Corporation under which he
is
claiming
regularization.
On
the
contrary it is the specific case of the
respondents that the U.P. Government
had issued Government Orders, which
strictly prohibited the creation of any
post
during
the
financial
year
in
question. In the absence of any policy for
regularization
of
service,
the
relief
prayed
for
cannot
be
granted.
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3 All] Mohd. Naseem Ansari V. State of U.P. and others
813
(Delivered by Hon'ble Vineet Saran, J.)

1. This writ petition has been filed
with a prayer for quashing the oral order
of termination of the petitioner passed on
15.4.2001 by respondent no. 4, Project
Manager,
Project
and
Tube-well
Corporation Unit, Bareilly. Further prayer
has been made for a direction to the
respondents to regularize the service of
the petitioner on the post of Store Munshi
cum Clerk and also to pay salary for the
post of junior clerk since 1998.

2. The brief facts relevant for the
adjudication of this case are that the
petitioner was engaged on contractual
basis from time to time for periods of six
months each beginning from 1.12.1998.
The last contractual engagement of the
petitioner made by the respondentCorporation ended in December 2000. In
this manner the petitioner was engaged
with the respondent-Corporation for about
two years and on that basis, the petitioner
is now claiming for regularization of his
service. From the averments made in the
writ petition it is not clear whether the
appointment was on any substantive
vacancy or not.

3. Sri K.S. Misra, learned counsel
for the petitioner has submitted that the
petitioner having worked for nearly three
years, has a right to be regularized in
service. He has further submitted that the
employees junior to the petitioner are still
working
in
the
same
department.
However, the same is not substantiated by
the specific averments in the writ petition
as to which of the employees junior to the
petitioner are still continuing to work. An
attempt has been made in the rejoinder
affidavit to show that certain persons who
had been recruited after the petitioner had
been allowed to continue to work. In the
said paragraphs of the rejoinder affidavit,
which has not even been properly sworn
and said to be based on legal advice,
certain names of the persons working as
Class IV employee, Stenographer, and
Junior Engineer have been given who are
said to be still working. It has not been
stated even in the rejoinder affidavit that
any person who was junior to the
petitioner and working as Store Munshi
cum Clerk is still continuing to work. It
has also not been stated that whether any
fresh hand has been recruited on the post
on which the petitioner claims to have
worked.

4. The learned counsel for the
petitioner also contended that the service
of the petitioner could not have been
terminated except in accordance with
Section 6N of the U.P. Industrial Disputes
Act, 1947. In support of his contention Sri
K.S. Misra, learned counsel for the
petitioner has placed reliance upon the
judgments of the Apex Court rendered in
Chief Conservator of Forests and
another
Vs.
Jagannath
Maruti
Kondhare and others (1996) 2 Supreme
Court Cases 293, Khagesh Kumar and
others
Vs.
Inspector
General
of
Registration and others 1995 Supp. (4)
Supreme Court Cases 182, as well as the
judgment of this Court in the case of
State
of
U.P.,
through
Executive
Engineer,
Tube
Well
Division-I,
Saharanpur Vs. Presiding Officer,
Labour Court, Dehradun and another
(2002) 3 UPLBEC 2404. I have perused
the said judgments. The same relate to
regularization of daily wage employees in
which the employees working on daily
wages had first approached the Industrial
Adjudicator before filing the writ petition
in the High Court. In the present case, the
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814 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
petitioner has filed a writ petition directly
without availing the alternative remedy.

5. Sri Rakesh Pandey, learned
counsel appearing for the contesting
respondents-U.P. Project and Tube-well
Corporation has submitted that violation
of Section 6N of the U.P. Industrial
Disputes Act, 1947 has not been raised in
the writ petition and even if that be so, the
petitioner can at best raise the issue before
the appropriate authority under the
Industrial Disputes Act. Sri Pandey has
further submitted that it has been
categorically stated in paragraphs 11 and
14 of the counter affidavit that there is no
post available on which the petitioner is
claiming regularization of service and
also that there are no funds for payment of
salary. The contention of the learned
counsel for the respondents-Corporation
is that the petitioner was engaged on
contractual basis on account of some extra
work which was required to be carried out
on a particular project and on the
completion of the project, the respondentCorporation
has
discontinued
the
engagement made on contractual basis.
Sri Pandey has also submitted that no
discrimination has been made in the case
of the petitioner, as the petitioner has not
been able to point out that the service of
any other person, who was similarly
situated as the petitioner, has been
regularized.
Sri
Pandey
has
placed
reliance on a decision of the Apex Court
rendered in State of Himachal Pradesh
Vs. Suresh Kumar Varma and another
1996 (72) Supreme Court Indian Factories
Labour Reports 804, wherein it has been
held that the appointment on daily wages
cannot be a conduit pipe for regular
appointments which would be a backdoor entry, detrimental to the efficiency
of service and would breed seeds of
nepotism and corruption. He has further
placed reliance on another decision of the
Apex Court rendered in Dr. Arundhati
Ajit
Pargaonkar
Vs.
State
of
Maharasthra and another 1994 (69)
Supreme Court Indian Factories & Labour
Reports 695 wherein it has been held that
even a person who has worked on
temporary basis for nine years without
break would also not be entitled for
regularization, and that regular selection
cannot
be
substituted
by
human
consideration.

6. Having heard learned counsel for
the parties and on perusal of the record, in
my view, the petitioner has not been able
to make out a case for grant of any relief.
Since the petitioner was admittedly
engaged on contractual basis on fixed
payment, he had a right to continue only
till the period of his appointment as set
out in the contract. The appointment letter
of the petitioner on contractual basis
clearly indicates that he was engaged for a
certain period and thereafter he had no
right of employment to any post with the
respondents-Corporation. His appointment
not having been made on any substantive
post, he cannot claim regularization.
Learned counsel for the petitioner has not
been able to place any policy of the
Corporation under which he is claiming
regularization. On the contrary it is the
specific case of the respondents that the
U.P. Government had issued Government
Orders, which strictly prohibited the
creation of any post during the financial
year in question. In the absence of any
policy for regularization of service, the
relief claims cannot be granted. In the
present case, there is no question of
termination of service of the petitioner as
after the end of period of the contract
under which he worked, he ceases to have
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3 All] Puttu Lal Sashtri V. State of U.P. and others
815
any right on the post. The submission of
the petitioner for being granted the benefit
of Section 6N of the U.P. Industrial
Disputes Act, 1947 also cannot be
accepted. No such ground has been raised
in the writ petition. Even otherwise, for
deciding such an issue, evidence would be
required to be considered which can best
be done by the Industrial Adjudicator and
not in this extraordinary writ jurisdiction.
There is no averment in the writ petition
with regard to non-payment of salary to
the petitioner since 1998. Thus, the prayer
for payment of arrears of salary since
1998 also cannot be granted.

7. For the foregoing reasons, the
petitioner is not entitled to any relief. This
writ petition is accordingly dismissed
without there being any order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.7.2003

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 35865 of 2000

Puttu Lal Sashtri

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

Counsel for the Petitioner:
Sri Anil Bhushan

Counsel for the Respondents:
Sri P.D. Tripathi
S.C.

Constitution
of
India,
Article
226Disciplinary proceeding-initiated during
pendency-the
delinquent
employee
retired- disciplinary enquiry can not
continue.

Held- Para 5
The contention of the petitioner is that
after
attaining
the
age
of
superannuation on 30.6.87 the order of
suspension would automatically lapse
after retirement. It is submitted that the
disciplinary enquiry can not continue
after the retirement of an employee in
view of the judgment in Bhagrirathi Jena
vs. Board of Directors, OSFC and others
wherein the Apex Court has held that
disciplinary proceedings could not be
continued even for the purpose of
making reduction of the retrial benefits
inasmuch as there was no statutory
regulations made by the Corporation for
such reduction from the retrial benefits.
From the facts of the case as appear
from the judgment the Apex Court was
of the view that there was no specific
provision for deducting any amount from
the provident fund consequent to any
misconduct
determined
in
the
departmental
enquiry
nor
was
any
provision
made
for
continuance
of
departmental
enquiry
after
superannuation
and
as
such
the
Corporation had no legal authority to
make
any
reduction
to
the
retrial
benefits of the appellant. It has further
been held that there was also no
provision for conducting a disciplinary
enquiry after retirement of the appellant
and nor any provision that a deduction
could be made from retiral benefits.
Case law discussed:
Bhagirathi Jena Vs. Board of Director OSFC
W.P. No. 3829 of 1996 decided on

(Delivered by Hon'ble Rakesh Tiwari, J.)

Heard learned counsel for the parties
and perused the record.

1. By means of this writ petition, the
order dated 22.4.2000 passed by the
District
Basic
Education
Officer,
Shahjahanpur dismissing the petitioner
from service w.e.f. 30.6.1987 has been
challenged.