# Officers Federation and others v. Union of India and others, in para 23

- **Citation:** (2006) 1 ILRA 4
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-01-12
- **Case number:** Civil Misc. Writ Petition No. 2766 of 2002
- **Bench:** D.P. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/officers-federation-and-others-v-union-of-india-and-others-in-para-23-40743
- **Pages:** 5

## Headnote

Sri S.M.A. Kazmi
Sri A.K. Trivedi
S.C.

B.R. Ambedkar University, Agra-First
Statute-Art.
20.03
(6)(4)-Regular
absorptions- Petitioners working on Post
of Lab Assistant and Lab peon for the
last 12 years-when the institution in
question
was
given
temporary
recognition-subsequent on permanent
grant-the other employees appointed in
similarly
situated
condition-under
political pressure got regular absorptiondenied the case of petitioner held-not
proper-all the petitioners possess much
higher qualification than the requisite
qualification-more
than
12
years
excellent
working
experience-heldentitled
for
regular
absorption
by
forthwith effect in their respective post.

Held: Para 11 and 12

Applying the principles as propounded in
the decisions noted above to the facts of
the present case, there is no escape from
the conclusion that the petitioners are
entitled to be absorbed in the respective
posts.

For
the
reasons
given
above,
this
petition succeeds and is allowed and the
impugned order dated 5.11.2001 is
hereby quashed. The respondents are
directed to forthwith absorb/regularize
the services of the petitioners against
sanctioned post and release their salary
from the salary account. However, no
orders as to costs.
AIR 1992 SC-157
1997 (7) SCALE 277
AIR 1991 SC-295
2002 AWC (3) 2088 (D.B.)

## Text

4 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
had allegedly passed mala fide order in
order to favour such junior doctor, any
contention of mala fide action in fact i.e.
malice in fact should not be countenanced
by the Court."

14. In JT 1996 (8) SC 550, A.I.S.B.
Officers Federation and others Vs.
Union of India and others, in para 23,
the Hon'ble Apex Court has said where a
person, who has passed the order and
against whom the plea of mala fide has
been taken has not been impleaded, the
petitioner cannot be allowed to raise the
allegations of mala fide. The relevant
observation of the Apex Court relevant
are reproduced as under:-

"The person against whom mala
fides are alleged must be made a party to
the proceeding. Board of Directors of the
Bank sought to favour respondents 4 and
5 and, therefore, agreed to the proposal
put before it. Neither the Chairman nor
the Directors, who were present in the
said meeting, have been impleaded as
respondents. This being so the petitioners
cannot be allowed to raise the allegations
of mala fide, which allegations, in fact,
are without merit."

Recently in AIR 2003 Supreme
Court 1344, Federation of Railway
Officers Association Vs. Union of India
it has been held as under:

"That allegations regarding mala
fides cannot be vaguely made and it must
be specified and clear. In this context, the
concerned Minister who is stated to be
involved in the formation of new Zone at
Hazipur is not made a party who can meet
the allegations."

15. In the present case, the plea of
malafide has been raised without giving
the details or relevant material and
substantiating the same by furnishing the
relevant documents. In the absence of any
such material the said plea cannot be
looked into and has to be rejected.

16. The learned counsel for the
petitioner
further
submits
that
the
selection was held in a hurried manner.
However, it is not disputed that in all the
selections, a large number of candidates
appeared including the petitioner and
those who have been successful have been
appointed.
Once
the
petitioner
has
appeared in the selection, he cannot be
allowed to challenge the same after being
declared unsuccessful. No material has
been placed on record by the petitioner to
show that the selection is vitiated in law
either for violation of any statutory
provision or for any other reason.

17. In these circumstances, I do not
find any merit in the writ petition and it is
accordingly dismissed.

No order as to costs.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.01.2006

BEFORE
THE HON'BLE D.P. SINGH, J.

Civil Misc. Writ Petition No. 2766 of 2002

Ajay Kumar Kulshreshtha and others

...Petitioners
Versus
Director, Higher Education, U.P. and
others

...Respondents
1 All] Ajay Kumar Kulshreshtha & others V. Director Higher Education, U.P. & others
5
Counsel for the Petitioners:
Sri P.K. Jain
Sri Kshitij Shailendra

Counsel for the Respondents:
Sri S.M.A. Kazmi
Sri A.K. Trivedi
S.C.

B.R. Ambedkar University, Agra-First
Statute-Art.
20.03
(6)(4)-Regular
absorptions- Petitioners working on Post
of Lab Assistant and Lab peon for the
last 12 years-when the institution in
question
was
given
temporary
recognition-subsequent on permanent
grant-the other employees appointed in
similarly
situated
condition-under
political pressure got regular absorptiondenied the case of petitioner held-not
proper-all the petitioners possess much
higher qualification than the requisite
qualification-more
than
12
years
excellent
working
experience-heldentitled
for
regular
absorption
by
forthwith effect in their respective post.

Held: Para 11 and 12

Applying the principles as propounded in
the decisions noted above to the facts of
the present case, there is no escape from
the conclusion that the petitioners are
entitled to be absorbed in the respective
posts.

For
the
reasons
given
above,
this
petition succeeds and is allowed and the
impugned order dated 5.11.2001 is
hereby quashed. The respondents are
directed to forthwith absorb/regularize
the services of the petitioners against
sanctioned post and release their salary
from the salary account. However, no
orders as to costs.
AIR 1992 SC-157
1997 (7) SCALE 277
AIR 1991 SC-295
2002 AWC (3) 2088 (D.B.)

(Delivered by Hon'ble D.P. Singh, J.)

1. Heard counsel for the parties.

2. Shri Chitragupta Post Graduate
College, Mainpuri was granted temporary
recognition by the Chancellor, Bhim Rao
Ambedkar University, Agra vide his order
dated 10.8.1990 with effect from 1.7.1990
for a period of one year in the subjects of
Mathematics,
Physics,
Chemistry,
Zoology and Botany. Thus, the institution
was permitted to start classes in the
aforesaid subjects for preparing the
students to take examination in the
subjects of Physics, Chemistry, Zoology
and Botany. As the students had to be
prepared both for theoretical and practical
papers,
temporary
teachers,
Lab
Assistants and Lab Peons were appointed
by the institution. The petitioner nos. 1,
2,3 and 4 were granted appointment as
Lab Assistants in the four subjects and the
petitioner nos. 5 to 8 were appointed as
Lab Peons in those subjects to prepare the
students for practical examination and
were being paid their salary by the
Management from its own account.
Subsequently, the University granted
permanent recognition with effect from
1.7.1995, but when the Management
sought to terminate their services in
November, 1994, they obtained interim
orders. Similarly, teachers namely Manoj
Kumar Kudaisiya, Dr. Shalni Pandey and
Sudhakar
Dutt
Dwivedi
were
also
appointed on temporary basis by the
Management. The Director of Higher
Education created four posts of Lab
Assistants and four posts of Lab Peons in
the institution vide order dated 30.3.1999.
the
petitioners
claimed
absorption/regularization on those posts.
Even the Management of the institution
through its letter dated 1.2.2000 requested
6 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
the respondent no. 1 to absorb the
petitioner in the said posts as they had
been working since 1991 or later and the
Management did not wish to make any
other appointment on those posts. This
was followed by subsequent letters also.
The petitioners, having failed to receive
any reply, preferred writ petition no.
24614
of
2000
claiming
regularization/absorption.
This
writ
petition was finally disposed off vide
judgment
and
order
dated15.5.2001
requesting
the
Director
of
Higher
Education to consider the claim of the
petitioners and pass a reasoned order. By
the impugned order dated 5.11.2001, the
claims of the petitioners have been
rejected
on
the
ground
that
their
appointment was dehors the rules and
without prior approval of the Director.

3. It is apparent that all the
petitioners were appointed immediately
after the grant of temporary recognition
and each has a much higher qualification
than what is provided under the First
Statutes of the University. The following
chart
would
give
the
minimum
qualification,
actual
qualification
possessed, the date of appointment and
the length of service etc.

A perusal of the chart shows that all
the petitioners were duly qualified and
have been working for the last 11 to 14
years. As mentioned above, Sri Manoj
Kumar Kudaisiya was also appointed as
temporary
Lecturer
in
Mathematics
alongwith other teachers in different
subjects.
In
accordance
with
the
requirement of law, statement of the staff
is sent by the institution to the University
wherein names of both, teachers and the
petitioners are duly mentioned. A copy of
one such chart for the session 1995-96 is
also enclosed as Annexure-11 to the
petition. There is no denial or even
suggestion on behalf of the respondents
that all the petitioners and similarly
situated teachers were working in the
institution since their appointment and
nobody had been appointed on the post
created/sanctioned by the order dated
30.3.1999.

4. From a perusal of Annexures-1, 2,
5 and 6 it is apparent that even before
creation of the posts, the Management and
the Principal had sent letters to the
District Inspector of Schools, District
Employment Officer and the Regional
Deputy director of Higher Education
asking them to take part in the selection of
Lab
Assistants
and
Peons.
These
allegations have not been denied. It is also
apparent that a Selection Committee was
constituted as contemplated in clause (6)
of Article 20.03 of the First Statutes of the
University. However, none of the three
officials took part in the selection. No
doubt the aforesaid officials were a
necessary part of the Selection Committee
as
contemplated
by
the
aforesaid
provision, neither the institution nor the
petitioners could have forced them to take
1 All] Ajay Kumar Kulshreshtha & others V. Director Higher Education, U.P. & others
7
part in the proceedings. The contention of
the learned Standing Counsel that there
was no question of their taking part as no
post had, in fact, been created till then, is
off the mark. Once the temporary
recognition was granted, the provisions of
the State University Act, 1973 and the
Statutes
became
applicable
to
the
institution and therefore it was incumbent
upon the authorities to have taken part in
the selection proceedings. After the
creation of the posts, as is evident, the
Management through its letter dated
1.2.2000 had sought the approval of the
Director and thus had complied with the
requirement of clause (4) of Statute 20.03.
Thus,
it
cannot
be
said
that the
appointment
of
the
petitioners
was
absolutely dehors the rules.

5. Assuming that the appointment of
the petitioners was irregular, but it is not
denied that they have been working
satisfactorily for the last about 14 years.
Let us examining the trend of the courts in
such circumstances.

6. The Apex Court in the case of
N.S.K. Nayar Vs. Union of India (AIR
1992 SC 157) was considering the case of
an incumbent who had been working for
10 to 15 years without being given the
grade of the post. It held that since the
incumbent was working for such a long
period and otherwise was fully qualified,
their non-absorption would be arbitrary.

7. In Arun Kumar Raut Vs. State
of Bihar [1997 (7) SCALE 277] the
Supreme Court was considering the claim
of an incumbent who had been appointed
without following the due procedure,
though it sounded a note of caution that
such incumbent cannot be regularized as a
matter of course, but considering the fact
that they had been working for a very
long period and otherwise were qualified
and their service was satisfactory, it held
that they may be entitled for appointment
against the sanctioned post on human
consideration.

8. Some appointments were made by
the Chief Justice of the Kernataka High
Court without the mandatory consultation
with the Public Service Commission and
when they were sought to be dismissed,
they approached the High Court which
rejected their claim but the Apex Court in
H.C. Putta Swami and others Vs.
Hon'ble Chief Justice of Kernataka
High Court (AIR 1991 SC 295), though
held that the appointments were dehors
the rules but it directed the appointees to
be treated as regularly appointed on
humanitarian ground.

9. A Division Bench of our Court in
the case of Dr. Sangeeta Srivastava Vs.
University of Allahabad [2002 (3)
A.W.C. 2088] extended the benefit of
regularization to a Guest Lecturer who
had been appointed dehors the rules as
she was working for about 12 years. The
Apex Court affirmed the judgment in
Special Leave to Appeal.

10. It is not denied that teachers who
had been appointed along or after the
petitioners but before the posts were
created have been granted regularization
on those posts but the case of the
petitioners is sought to be distinguished
on the basis of the Government Order by
which the services of the teachers were
regularized. These low paid employees
hardly have the political or executive
muscle to approach the Government for
its order. Both the sets of employees were
similarly
placed
and
therefore
the
8 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
petitioners ought to have been treated
similarly.

11. Applying the principles as
propounded in the decisions noted above
to the facts of the present case, there is no
escape from the conclusion that the
petitioners are entitled to be absorbed in
the respective posts.

12. For the reasons given above, this
petition succeeds and is allowed and the
impugned order dated 5.11.2001 is hereby
quashed. The respondents are directed to
forthwith absorb/regularize the services of
the petitioners against sanctioned post and
release their salary from the salary
account. However, no orders as to costs.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.07.2002

BEFORE
THE HON'BLE SANJAY MISRA, J.

Civil Misc. Writ Petition No. 33685 of 2002

Akhilesh Kumar Chaubey
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri R.M. Pandey
Sri Ramesh Chand
Sri K.K. Misra

Counsel for the Respondents:
C.S.C.

Dying in Harness Rules, 1974-rule 2
(a)(iii)-Employee-through not regularly
appointed-3 years service on regular
vacancy-The
dependant
of
such
employee entitled for the benefit of
Compassionate
appointment-12
years
continuous service-benefit of leave etc.
given-held requirement was perpetual
and regular in nature hence come under
the definition of Government servant for
the
purpose
of
appointment
on
compassionate ground.

Held: Para 13 and 14

Taking the present case it is not disputed
that
the
petitioner's
father
was
appointed in 1987 and he continued to
work
continuously
till
he
died
on
20.8.99.
The
appointment
of
the
petitioner's father was initially for a
period of three years on being selected
by a Selection Committee. The said
appointment was then converted and he
was appointed as tube well assistant in
1992 also for three years. He continued
to work and was paid his salary regularly
and there was no break in his service.
This fact is also not denied by the
respondents.
The
fact
that
the
respondents required the services of the
petitioner's father continuously since
1987 to 1999 is indicative of the fact
that the requirement was of a perpetual
and regular nature. It is not the case of
the respondents that the work of tube
well operators no more exists. It has also
not been pleaded that such tube well
operators are no more required. On a
vacancy which may occur of a part time
tube well operator the tube well still has
to be operated, therefore, the nature of
work is existing day to day and the
respondents have taken the services of
the petitioner's father due to existence
of work since 1987 continuously. During
this period of nearly 12 years the salary
has been disbursed by the respondents
month to month. The nature of work
required
to
be
performed
by
the
petitioner's father was of a regular
nature as is apparent from a reading of
the appointment letter dated 20.5.92
wherein the duties of the petitioner have
been prescribed. It is also not disputed
by the learned Standing Counsel that the
part time tube well operators are being
paid
the
same
salary
as
regularly
appointed tube well operators on the
principle of 'equal pay for equal work'.