# Mool Chand and others v. State of U.P. and others Connected with

- **Citation:** (2006) 3 ILRA 1113
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-04-28
- **Case number:** Civil Misc. Writ Petition No. 12901 of 2004
- **Bench:** V.K. Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mool-chand-and-others-v-state-of-u-p-and-others-connected-with-40746
- **Pages:** 6

## Headnote

Constitution
of
India
Art.
226Regulation-Petitioners were appointed
1114 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
on the post of Sweeper-due to the
substantive vacancy caused on dismissed
of services of the permanent employeeson illegal strike-appointment made on
the basis of resolution dated 22.10.90duly approved by the District Magistrate
continuous working and getting salary
till
August
05-in
September-2005
restrained from working-at the same
time
advertised
fresh
vacancycontinuous working for 15 years on
substantive post can not be ignored-in
view of U.P. Group D post Daily Wagers
Regularisation Rules 2001-as well as the
law
laid
down
by
Apex
Court
by
judgment dated 10.4.06 in SLP No. 35953612 of 99-working on 10 years or more
on substantive, duly sanctioned post-can
not
be
thrown
out-entitled
for
regularisation-till
the
regularisation
made direction issued for minimum pay
scale to be paid.

Held: Para 8 & 9

Now the next question to be considered
is as to whether petitioners being daily
wagers, are their services liable to be
regularized as a matter of right. The
Hon'ble
Apex
Court
in
its
latest
pronouncement in Appeal (civil) 35953612 of 1999 dated 10.04.2006 in the
case of Secretary, State of Karnataka
and others vs. Umadevi and others, has
mandated that where even irregular
appointments have been made and the
incumbents have been working for 10
years or more in duly sanctioned post
but not under the covers of orders of
courts
or
tribunal
then
process
of
regularization be set in motion within six
months from the date of the order.

Thus, as per latest pronouncement of
Hon'ble
Apex
Court,
even
where
irregular appointments have been made
against duly sanctioned post, their cases
are
liable
to
be
considered
for
regularization, they cannot be thrown
away.
Consequently,
following
the
aforementioned decision, it is hereby
directed that claim of petitioners for
extending the benefit of regularization
be
adverted
to
Nagar
Panchayat,
Bisanda, District Banda and further
petitioners be permitted to discharge
their
duties
as
sweeper
and
the
minimum of the pay scale be paid to
them, till matter of regularization is not
finalized.
Case law discussed:
1969 (2) SCC-187
1984 (1) SCC-125
1996 (1) SCC-44
1995 (Supp.) 3 SCC-249
SLP No.3595-3612 of 99 decided on 10.4.2006
relied on.

## Text

3 All] Raghunath Prasad Yadav V. D.I.O.S., Gorakhpur and others
1113
the expression "District Inspector of
Schools" shall mean the "Regional
Inspector of Girls' Schools:.

10. Similar view has already been
taken by the Full Bench of this Court in
Radha Raizada and others Versus
Committee of Management, Vidyawati
Darbari Girls Inter College and others
(supra) case. Section 18 does not provide
the procedure of selection of ad hoc
Assistant Teacher but Section 18 has to be
harmonised with the Difficulties Order.
Thus wherever the ad hoc appointment is
made on substantive vacancy paragraph 5
of the Uttar Pradesh Secondary Education
Service
Commission
(Removal
of
Difficulties)
Order,
1981
shall
be
applicable
and
for
any
ad
hoc
appointment the Inspector has to invite
applications from the local Employment
Exchange
and
also
through
public
advertisement in at least two news papers
having adequate circulation in Uttar
Pradesh. The Division Bench Judgement
in Chhatrapal's case (supra) relied by the
counsel for the appellant was a case
where the Division Bench took the view
that for substantive vacancy in C.T. Grade
approval of the District Inspector of
Schools is not necessary and such teacher
is to be treated in C.T. Grade till the
selection is made by the Board. What
shall be the procedure for ad hoc
appointment under Section 18 has been
expressly considered nor it has been held
in the said Judgment that for ad hoc
appointment advertisement only on the
Notice Board is sufficient. The said
Judgment does not support the contention
raised by the learned counsel for the
appellant in the present case.

11. In view of the aforesaid the
appointment of the appellant having been
made without advertisement in two news
papers which is the case of the petitioner
himself, the petitioner has expressly, in
paragraph 9 of the writ petition, stated
that the Manager of the Institution
advertised the post on the Notice Board of
the Institution, no relief can be granted to
the appellant. We don not find any good
ground to interfere with the Judgement of
the learned Single Judge. In the event the
appellant has performed any duties at the
instance of the Management it is for the
Management to consider the claim of the
appellant for payment of salary if any.

12. Subject to above observation the
appeal is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.04.2006

BEFORE
THE HON'BLE V.K. SHUKLA, J.

Civil Misc. Writ Petition No. 12901 of 2004

Mool Chand and others ...Petitioners
Versus
State of U.P. and others ...Respondents
Connected with
Civil Misc. Writ Petition No. 60669 of 2005

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

Counsel for the Petitioners:
Sri R.P. Tiwari
Sri D.K. Mishra

Counsel for the Respondents:
Sri S.F.A. Naqvi
Sri Sant Ram Sharma

Constitution
of
India
Art.
226Regulation-Petitioners were appointed
1114 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
on the post of Sweeper-due to the
substantive vacancy caused on dismissed
of services of the permanent employeeson illegal strike-appointment made on
the basis of resolution dated 22.10.90duly approved by the District Magistrate
continuous working and getting salary
till
August
05-in
September-2005
restrained from working-at the same
time
advertised
fresh
vacancycontinuous working for 15 years on
substantive post can not be ignored-in
view of U.P. Group D post Daily Wagers
Regularisation Rules 2001-as well as the
law
laid
down
by
Apex
Court
by
judgment dated 10.4.06 in SLP No. 35953612 of 99-working on 10 years or more
on substantive, duly sanctioned post-can
not
be
thrown
out-entitled
for
regularisation-till
the
regularisation
made direction issued for minimum pay
scale to be paid.

Held: Para 8 & 9

Now the next question to be considered
is as to whether petitioners being daily
wagers, are their services liable to be
regularized as a matter of right. The
Hon'ble
Apex
Court
in
its
latest
pronouncement in Appeal (civil) 35953612 of 1999 dated 10.04.2006 in the
case of Secretary, State of Karnataka
and others vs. Umadevi and others, has
mandated that where even irregular
appointments have been made and the
incumbents have been working for 10
years or more in duly sanctioned post
but not under the covers of orders of
courts
or
tribunal
then
process
of
regularization be set in motion within six
months from the date of the order.

Thus, as per latest pronouncement of
Hon'ble
Apex
Court,
even
where
irregular appointments have been made
against duly sanctioned post, their cases
are
liable
to
be
considered
for
regularization, they cannot be thrown
away.
Consequently,
following
the
aforementioned decision, it is hereby
directed that claim of petitioners for
extending the benefit of regularization
be
adverted
to
Nagar
Panchayat,
Bisanda, District Banda and further
petitioners be permitted to discharge
their
duties
as
sweeper
and
the
minimum of the pay scale be paid to
them, till matter of regularization is not
finalized.
Case law discussed:
1969 (2) SCC-187
1984 (1) SCC-125
1996 (1) SCC-44
1995 (Supp.) 3 SCC-249
SLP No.3595-3612 of 99 decided on 10.4.2006
relied on.

(Delivered by Hon'ble V.K. Shukla, J.)

1. Petitioners have filed writ petition
No. 12901 of 2004 for issuing writ in the
nature of mandamus commanding the
respondents to consider the regularization
of their services on the post of sweeper in
Town Area Bisanda, District Banda
(subsequently
upgraded
as
Nagar
Panchayat, Bisanda, District Banda). Civil
Misc. Writ Petition No.60669 of 2005 has
been filed questioning the validity of the
action
taken
by
respondents
by
proceeding to make appointment on the
post of sweeper on contractual basis and
further
ceasing
petitioners
from
performing and discharging their duties as
sweeper.

2. Brief background of the case is
that in Town Area Bisanda, District
Banda, in the year 1990 there was strike
and the attempt on the part of Chairman
of the Town Area Committee to get the
strike withdrawn failed and as the work
was suffering, resolution was passed on
22.10.1990 for dispensing with the
services of striking employees, and for
making stop gap arrangement in their
place for maintaining cleanliness in the
aforesaid Town Area. Petitioners were
appointed as sweeper on daily wage basis
3 All] Mool Chand and others V. State of U.P. and others
1115
on the strength of resolution dated
22.10.1990 passed by the Town Area
Committee. The said resolution was also
approved by the District Magistrate,
Banda. Petitioners claim that they had
been appointed against sanctioned post
and they have been continuing to perform
and discharge their duties on the post of
sweeper since 22.10.1990. Petitioners
submit that in terms of the provisions as
contained under U.P. Group D Post Daily
Wagers Regularization Rules, 2001 and
various Government Orders issued in the
past
for
extending
benefit
of
regularization, petitioners were raising
their claim for extending benefit of
regularization,
as
they
were
being
perpetuated
on
daily
wage
basis.
Petitioners claim that their services are
liable to be regularized, and for extending
the benefit of regularization writ petition
No.12901 of 2004 had been filed, wherein
counter affidavit was invited. During the
pendency of the aforementioned writ
petition,
petitioners
continued
to
discharge and perform their duties as
sweeper and were paid remuneration till
August, 2005. Since September, 2005,
petitioners have been restrained from
performing and discharging duties, and
applications have been invited for making
appointments on the post of sweeper on
contract basis. At this juncture, Civil
Misc. Writ Petition No.60669 of 2005 has
been filed.

3. Counter affidavit has been filed,
and therein it has been contended that
enquiry
had
been
conducted
qua
appointment of petitioners, and the said
appointments have been found to be
illegal, as such order, which has been
passed on subsequent occasions canceling
their appointments and ceasing them from
discharging and performing duties is
justifiable
action
and
no
right,
whatsoever, of the petitioner has been
infringed, and as the appointment itself
was illegal, no advantage or benefit of
regularization can be extended to the
petitioners. Rejoinder affidavit has been
filed disputing the averments mentioned
in the counter affidavit and the statement
of fact mentioned in the writ petition has
been reiterated.

4. After pleadings aforementioned
have been exchanged, both the writ
petitions have been taken up together for
final hearing and disposal with the
consent of the parties.

5. Sri Rajendra Prasad Tiwari
Tiwari, learned counsel appearing for the
petitioners, contended with vehemence
that
petitioners
had
been
validly
appointed
as
daily
wagers
as
per
resolution which was duly approved by
the competent authority and without there
being any lawful foundation and basis,
petitioners
have
been
ceased
from
performing and discharging their duties in
order to deprive the petitioners of their
legitimate right of regularization, as such
writ petitions are liable to be allowed.

6. Sri S.F.A Naqvi, learned counsel
representing the Nagar Palika Parishad,
the then Town Area Committee, Bisanda,
District Banda on the other hand,
contended that appointment of petitioners
was perse illegal and void, as such
petitioners are not entitled to get the
benefit of regularization, as such no
interference be made.

7. After the respective arguments
have been advanced, the undisputed
position, which emerges is to the effect
that on the strength of resolution dated
1116 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
22.10.1990, petitioners were appointed as
sweeper on daily wage basis and said
resolution was approved by the District
Magistrate, Banda on 22.11.1990. This is
undisputed position that in lieu of
performing
and
discharging
duties,
petitioners have been paid remuneration.
Complaint
had
been
made
qua
appointment of petitioners and enquiry
report had been submitted way back on
21.11.1998, concluding therein that in
resolution dated 22.11.1990 no details
have been given of the safai employees,
who were to be appointed, as such said
appointments cannot be said to be proper
appointment. The fact of the matter is that
resolution had been passed taking in view
that striking employees had not returned
back and stop gap arrangement was to be
made. At the point of time when
resolution had been passed, names of
employees were not there and policy
decision
was
taken
to make such
appointments and appointments had been
made
subsequent
to
the
same.
Consequently, infirmity, which has been
pointed out that names were not there,
was not of much consequence, inasmuch
as arrangement was to be made by way of
stop gap arrangement on temporary basis.
The persons whose reference has been
given by name in the report dated
21.11.1998,
are
certainly
not
the
petitioners. Even after the report of
Additional
Commissioner
dated
21.11.1998 had been submitted, all the
petitioners continued to perform and
discharge their duties without there being
any action on the part of respondents on
the said report. Record reveals that said
report was transmitted by Director, Local
Bodies
to
State
Government
on
21.06.2003 and State Government on
21.07.2004 asked for action and thereafter
Director has written letter on 07.02.2005
for action, which was inclusive of
cancellation
of
appointment
also.
Petitioners
continued
to
function,
remuneration was paid till August, 2005
and there after petitioners have been
restrained
from
performing
and
discharging duties and their appointment
has been sought to be cancelled. In the
present case sequence of dates clearly
demonstrate
that
there
has
been
unreasonable delay in taking any action
on the said report, which even otherwise
was of no much consequence vis-a-vis
petitioners, who had been appointed on
daily wage basis on the strength of
resolution duly approved by competent
authority and had been continuing to
perform and discharge their duties for the
last fifteen years. It is well settled that
whenever any authority is vested then that
authority has to be exercised within
reasonable period. Hon'ble Apex Court in
the cases of State of Gujrat vs. Patil
Raghav Netha, reported in 1969 (2) SCC
187; Mansa Ram vs. S.P. Pathak and
others, reported in 1984 (1) SCC 125;
Ram Chand and others vs. Union of India
and 1996 (1) SCC 44 and State of Orissa
and
others
vs.
Burdandan
Sharma
reported in 1995 (Supp) 3 SCC 249, has
taken the view that exercise of power is
always subject to inherent limitation of
power
being
exercised
within
a
reasonable period and as to what would
be the reasonable period is dependent
upon different facts and situation peculiar
in each case. Here, report against
petitioners
had
been
submitted
on
21.11.1998, and power of cancelling
appointment of petitioners had been
exercised after seven years. The snail
pace with which proceedings have been
undertaken, in the facts of present case,
cannot be said to be exercise of power
within reasonable period. Ceasing of
3 All] Mool Chand and others V. State of U.P. and others
1117
employment of petitioners based on report
dated 21.11.1998 cannot be said to be
justifiable exercise of power and the
power in the present case has been
arbitrarily exercised without there being
any lawful justification for the same.
Consequently,
the
order
of
cessation/cancellation of employment of
petitioners is hereby quashed and set
aside.

8. Now the next question to be
considered is as to whether petitioners
being daily wagers, are their services
liable to be regularized as a matter of
right. The Hon'ble Apex Court in its latest
pronouncement in Appeal (civil) 35953612 of 1999 dated 10.04.2006 in the case
of Secretary, State of Karnataka and
others vs. Umadevi and others, has
mandated that where even irregular
appointments have been made and the
incumbents have been working for 10
years or more in duly sanctioned post but
not under the covers of orders of courts or
tribunal then process of regularization be
set in motion within six months from the
date of the order. Paragraphs 44 and 45 of
the said judgment being relevant are being
quoted below:

"44. One aspect needs to be clarified.
there may be cases where irregular
appointments (not illegal appointments)
as explained in S.V. NARAYANAPPA
(supra), R.N.NANJUNDAPAA (supra)
and B.N. NAGARAJAN (supra) and
referred to in paragraph 15 above, of duly
qualified persons in duly sanctioned
vacant posts might have been made and
the employees have continued to work for
ten years or more but without the
intervention of orders of courts or of
tribunals. the question of regularization of
the services of such employees may have
to be considered on merits in the light of
the principles settled by this Court in the
cases above referred to and in the light of
this judgment. In that context Union of
India, the State governments and their
instrumentalities should take steps to
regularize as a one time measure, the
services of such irregularly appointed,
who have worked for ten years or more in
duly sanctioned vacant posts but not
under the cover of orders of courts or of
tribunals and should further ensure that
regular recruitments are undertaken to fill
those vacant posts that require to be filled
up, in cases where temporary employees
or daily wagers are being now employed.
the process must be set in motion within
six months from this date. We also clarify
that that regularization, if any already
made, but not subjudice, need not be
reopened based on this judgment, but
there should be no further by-passing of
the
constitutional
requirement
and
regularizing or making permanent, those
not
duly
appointed
as
per
the
constitutional scheme.
45. It is also clarified that those
decisions which run counter to the
principles settled in this decision, or in
which directions running counter to what
we have held herein, will stand denuded
of their status as precedents."

9. Thus, as per latest pronouncement
of Hon'ble Apex Court, even where
irregular appointments have been made
against duly sanctioned post, their cases
are
liable
to
be
considered
for
regularization, they cannot be thrown
away.
Consequently,
following
the
aforementioned decision, it is hereby
directed that claim of petitioners for
extending the benefit of regularization be
adverted to Nagar Panchayat, Bisanda,
District Banda and further petitioners be
1118 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
permitted to discharge their duties as
sweeper and the minimum of the pay
scale be paid to them, till matter of
regularization
is
not
finalized.
Consequently, both the writ petitions are
allowed.

No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.07.2006

BEFORE
THE HON'BLE S.K. SINGH, J.

Civil Misc. Writ Petition No. 22603 of 2001

Thakur Prasad Dubey

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

Counsel for the Petitioner:
Sri P.N. Tripathi

Counsel for the Respondents:
Sri Alam
Sarita Singh
S.C.

Constitution
of
India,
Art.
226Compulsory Retirement-on the basis of
single adverse entry-held-single adverse
entry
can
not
be
the
basis
for
punishment of compulsory retirementeven the lesser recovery depends upon
several factors of formers-unless the
finding about negligence in duty-can not
be termed as dead wood for the
department-Order
impugned
quashed
with all consequential benefit.

Held: Para 7

Petitioner was retired in the public
interest.
This
expression
has
been
explained
in
series
of
judgment.
Reference can be made to the judgment
given in case of S. Ramachandra Raju V.
State of Orissa reported in (1994) Vol.
28, Administrative Tribunal Cases 443 in
which Apex Court has held that order of
compulsory retirement passed on one
adverse entry followed by subsequent
report makes the exercise of power
arbitrary.
Case law discussed:
2000 (1) UPLBEC-582
2006 (2) ESC-1491
AIR 2002 SC-1345
1994 (2) 28 ATC-443

(Delivered by Hon'ble S.K. Singh)

1. Heard Sri P.N. Tripathi, learned
Advocate in support of this petition and
Sri Alam, learned Standing Counsel in
opposition thereof.

2. Challenge in this petition is the
order dated 31.5.2001 passed by the
respondent
no.
2,
Sub
Divisional
Magistrate, Harraiya, District Basti by
which petitioner has been directed to be
compulsory retired.

3. Petitioner claims to have been
appointed as Seasonal Collection Amin in
the year 1974 and on account of his
continuous satisfactory service he was
regularised in the year 1985 and it is said
that on account of their being less
recovery from the target by the petitioner
an adverse entry was given in the year
1993. It is thereafter in the year 2000, in
view of the fact that again petitioner could
get recovered amount to a tune of about
17,000/-
in
place
of
Rs.30,000/=
petitioner was placed under suspension
which was stayed by this Court but
thereafter petitioner has been directed to
be compulsory retired by the impugned
order dated 31.5.2001 and thus this
petition before this court.