# Naresh Kumar v. Director of U.P. Local Body and others - **Citation:** (2010) 1 ILRA 97 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2010-02-01 - **Case number:** Civil Misc. Writ Petition No. 4781 of 2010 - **Bench:** A.P. Sahi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/naresh-kumar-v-director-of-u-p-local-body-and-others-41541 - **Pages:** 2 ## Headnote Code of Civil Procedure- Section 100-Suit for specific performance-dismissed by Trail Court-Lower Appellate court decreed the Suit with specific finding about readiness and willingness of Respondent's father-common tendency developed to rescile from contract after receiving handsome amount- person who paid money found cheated after getting involved in unwanted litigationsPrimary duty of court to enforce such promise-Court must rescine to encourage such dishonest tendency- appeal dismissed-no substantial question of law. ## Text 1 All] Naresh Kumar V. Director of U.P. Local Body and others 97 APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 01.02.2010 BEFORE THE HON'BLE A.P. SAHI, J. Civil Misc. Writ Petition No. 4781 of 2010 Naresh Kumar ...Petitioner Versus Director U.P. Local Body, U.P. Lucknow and others ...Respondents Counsel for the Petitioner: Sri Ashfaq Ahmad Ansari Counsel for the Respondent: C.S.C. Constitution of India. Art 226-Illegal appointment-continued for long timeappointment of petitioner directly on promotional post of Safai Nayak-such illegality can not be cured-considering long period of working appointment on post of Safai Employer can be considered. Held: Para 9 & 10 The Apex Court subsequently in the case of State of U.P. Vs. Neeraj Awasthi & others, reported in 2006 Volume 1 AWC Page 175 has clarified the aforesaid position and held that an irregularity can be cured but an illegality cannot be cured through judicial intervention. The Apex Court has held that a person who has been appointed completely de-hors the rules, such appointment on equities cannot be sustained. Reference be had to paras 52 and 57. In the instant case the petitioner has been admittedly appointed against a promotional post on which no direct recruitment could have taken place. The Court is supported in its view by the decision in the case of Hiraman Vs. State of U.P., 1997(11) SCC Page 630. In thissss view of the matter the impugned order cannot be interfered in view of the findings recorded therein. Case Law discussed: 1993 Volume 3 SCC Page 591, 2006 Volume-1 AWC Page 175, 1997(11) SCC Page 630. (Delivered by Hon'ble A.P. Sahi, J.) 1. Heard learned counsel for the petitioner. 2. The challenge is to the impugned order dated 21st January, 2010 passed by the Executive Officer, Nagar Panchayat, Meerapur, District Muzaffarnagar on the ground that the dispensation of the service of the petitioner is illegal and unjust. 3. The contention raised is that the petitioner has worked for more than 10 years, therefore, his services could not have been dispensed with. It is further submitted that his services were confirmed. 4. The charge against the petitioner is that he was appointed directly on the post of Safai Nayak which post is a promotional post and no direct recruitment can be made on the said post. The complaint was made earlier and learned counsel for the petitioner contends that his services were confirmed by the order dated 11th of January, 2003. 5. It is further submitted that not only this the second complaint has been made on the same grounds and as such the same could not have been entertained. 6. A perusal of the second complaint demonstrates that the same has emanated on the strength of a letter issued by the National Commission for Safai Karmcharis, Ministry of Social Justice 98 INDIAN LAW REPORTS ALLAHABAD SERIES [2010 and Empowerment, wherein, it has been indicated that the claim of the petitioner does not come within the fourcorners of the Rules and he has obtained employment against a post which could not have been filled by direct recruitment. Thereafter, the matter was inquired into and the impugned order has been passed. 7. Learned counsel contends that after having continued and having been confirmed in service, the petitioner could not have been removed from the post. 8. It is true that the Apex Court in case of Dr. M.S. Mudhol & another Vs. Halegkar & others, reported in 1993 Volume 3 SCC Page 591 has indicated that even if a person has continued in service for long on the basis of some deficiency in initial appointment then such appointment should not be dispensed with. However, the case at hand is distinguishable on facts. 9. The Apex Court subsequently in the case of State of U.P. Vs. Neeraj Awasthi & others, reported in 2006 Volume 1 AWC Page 175 has clarified the aforesaid position and held that an irregularity can be cured but an illegality cannot be cured through judicial intervention. The Apex Court has held that a person who has been appointed completely de-hors the rules, such appointment on equities cannot be sustained. Reference be had to paras 52 and 57. 10. In the instant case the petitioner has been admittedly appointed against a promotional post on which no direct recruitment could have taken place. The Court is supported in its view by the decision in the case of Hiraman Vs. State of U.P., 1997(11) SCC Page 630. In this view of the matter the impugned order cannot be interfered in view of the findings recorded therein. 11. On equities petitioner has worked for almost 18 years. The Executive Officer, Nagar Panchayat may sympathetically consider the petitioners engagement as a Safai Karmchari. Keeping in view the aforesaid position explained herein above the petition is dismissed with the aforesaid observations. --------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 03.02.2010 BEFORE THE HON'BLE RAKESH SHARMA,J. Second Appeal No.156 of 2010 Hodil Singh ...Appellant Versus Bhagwant Singh ...Respondent Counsel for the Appellant: Sri Anil Kumar Aditya Counsel for the Opposite Party: Sri Manish Chandra Tiwari Sri A.T. Kulsreshtha Code of Civil Procedure- Section 100-Suit for specific performance-dismissed by Trail Court-Lower Appellate court decreed the Suit with specific finding about readiness and willingness of Respondent's father-common tendency developed to rescile from contract after receiving handsome amount- person who paid money found cheated after getting involved in unwanted litigationsPrimary duty of court to enforce such promise-Court must rescine to encourage such dishonest tendency- appeal dismissed-no substantial question of law.