# Om Veer & Ors v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 702
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-15
- **Case number:** Writ-A No. 2175 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-veer-ors-v-state-of-u-p-ors-51955
- **Pages:** 10

## Headnote

A. Service Law - Constitution of India -
Article 14 - Discrimination - Termination
from service - Petitioners were engaged
with NOIDA through Service provider as
Assistant Manager over a long period of
time - Though 187 old employees, who
were engaged through another Service
providers have been retained, services of
the petitioners have been dispensed with -
Permissibility - Held, the Greater NOIDA,
being an establishment of the St., ought
not to pick and choose, throwing out able
and experienced hands and replacing them
by fresh hands for no ostensible and reason
individuate to each case - The petitioners
had been on the Greater NOIDA's roll
directly, may be as contractual employees,
over periods of time, spreading from 10-23
years - Held further, dispensation of the
petitioners' services in the fashion, that
has
been
done
through
the
order
impugned, appears to be unreasonable,
arbitrary and discriminatory - High Court
issued Mandamus for re-engagement of
the petitioners, if regularly selected have
not already joined. (Para 18, 19 and 25)

Writ petition allowed in part. (E-1)

List of Cases cited:
5 All. Om Veer & Ors. Vs. State of U.P. & Ors.
703

## Text

702 INDIAN LAW REPORTS ALLAHABAD SERIES

OBSERVATIONS OF THE COURT

28. Before parting, this Court deems it
fit to observe that the appointment under the
compassionate scheme is not meant to be an
alternate source of recruitment. It is
essentially to reach immediate succor to a
bereaved family. In other words, the sudden
passing away of a government servant
creates a financial vacuum and it is to lend a
helping hand to the genuinely needed
members of the bereaved family that an
appointment is provided. It is never meant to
be a source of conferring any status or an
alternate mode of recruitment.

ORDER BY THE COURT

29. In view of the above, it is provided
that as the respondent-petitioner has failed
to qualify in the physical examination for the
post of Sub-Inspector, it will remain open
for
her
to
apply
afresh
seeking
compassionate appointment on any other
suitable post in the Department, which may
be offered to her as per her eligibility and
suitability. It is also provided that in the
event the respondent-petitioner makes any
such application within four weeks from
today, the same shall be considered and
disposed of in view of the observations
made hereinabove as well as taking into
account the Government Order dated
18.09.2015 within next three weeks. If the
petitioner is considered entitled for any
other post by the department, the same shall
be offered to her within a period of 30 days'
from the date of decision to be taken by the
authority.

30. With the aforesaid observations,
the instant special appeal stands disposed of.

31. There shall be no order as to costs.
----------
(2024) 5 ILRA 702
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.05.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 2175 of 2023

Om Veer & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sr. Advocate, Sri Uma Nath Pandey

Counsel for the Respondents:
Anjali Upadhya, C.S.C.

A. Service Law - Constitution of India -
Article 14 - Discrimination - Termination
from service - Petitioners were engaged
with NOIDA through Service provider as
Assistant Manager over a long period of
time - Though 187 old employees, who
were engaged through another Service
providers have been retained, services of
the petitioners have been dispensed with -
Permissibility - Held, the Greater NOIDA,
being an establishment of the St., ought
not to pick and choose, throwing out able
and experienced hands and replacing them
by fresh hands for no ostensible and reason
individuate to each case - The petitioners
had been on the Greater NOIDA's roll
directly, may be as contractual employees,
over periods of time, spreading from 10-23
years - Held further, dispensation of the
petitioners' services in the fashion, that
has
been
done
through
the
order
impugned, appears to be unreasonable,
arbitrary and discriminatory - High Court
issued Mandamus for re-engagement of
the petitioners, if regularly selected have
not already joined. (Para 18, 19 and 25)

Writ petition allowed in part. (E-1)

List of Cases cited:
5 All. Om Veer & Ors. Vs. State of U.P. & Ors.
703
1. Ashok Kumar & ors.Vs St. of U.P. & ors.; 2019
SCC OnLine All 7333

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed against
an order dated 30.01.2023 passed by the
Special Executive Officer (Personnel),
Greater NOIDA, District Gautam Budh
Nagar, directing the petitioners to be sent
back to the Service Provider with immediate
effect.

2. According to the petitioners, they
are holders of Diploma in Civil Engineering
and engaged on different dates on posts of
Technical Supervisors by the Greater New
Okhla Industrial Development Authority
(for short, 'the Greater NOIDA'). The details
of the petitioners' engagement with the
Greater NOIDA as Technical Supervisors,
now called Assistant Managers, are detailed
by the petitioners in the following terms:

S
l.
N
o
.
Nam
e
Desi
gnat
ion
Fat
her'
s
Na
me
Qual
ificat
ion
Wo
rki
ng
Per
iod
T
ot
al
Y
e
ar
1
Om
Veer
Assi
stant
Man
ager
Bac
hch
u
Sin
gh
Dipl
oma
Civil
Engi
neeri
ng
20
0720
23
1
7
2
Dhar
men
dra
Ver
ma
Assi
stant
Man
ager
Pre
m
Ku
mar
Dipl
oma
Civil
Engi
neeri
ng
20
0420
23
1
9
3
Nav
een
Assi
stant
Sha
ms
her
Dipl
oma
Civil
19
992
3
Kum
ar
Man
ager
Sin
gh
Engi
neeri
ng
20
23
4
Moh
it
Cha
udha
ry
Assi
stant
Man
ager
Tej
Pal
Sin
gh
Dipl
oma
Civil
Engi
neeri
ng
20
1320
23
1
0
5
Indr
a
Dev
Chh
okar
Assi
stant
Man
ager
Ch
and
ra
Pal
Dipl
oma
Civil
Engi
neeri
ng
20
0220
23
2
0

3. The aforesaid tabular depiction of
facts relating to the five petitioners is
pleaded in paragraph No.11 of the writ
petition. A Government Order, bearing No.
717/36-5-2020-8(26)/2020
dated
18.08.2020 has been issued saying that in
accordance with another Government Order
dated 18.12.2019 issued by the Department
of Personnel in various Departments of the
Government of Uttar Pradesh and its
subordinate Establishments, there would be
hiring of manpower through outsourcing,
and for the purpose, a website developed by
the
Government
of
India,
called
Government e-Marketplace or GeM Portal
would have to be utilized. The Greater
NOIDA adopted the Government Order
dated 18.08.2020 in their 120th Board
Meeting
held
on
09.09.2020.
In
a
subsequent meeting of the Greater NOIDA
Board, that is to say, 122nd Meeting held on
22.06.2021, it was resolved that manpower
would be procured through the GeM Portal
against vacant posts, regarding which
requisition had already been sent to the
Subordinate
Service
Public
Services
Commission
and
the
Public
Service
Commission. The procurement would, thus,
704 INDIAN LAW REPORTS ALLAHABAD SERIES
be done by means of outsourcing through
Placement Agencies.

4. It was also resolved that Assistant
Managers, whose services had been hired
through Placement Agencies or Service
Providers, would be given the right to write
measurement books only, if the concerned
Assistant
Manager
holds
necessary
qualifications in engineering, as prescribed
by the State Government and have further
rendered satisfactory service for a period of
five years with the Greater NOIDA
regularly. In order to implement the
resolution of the Greater NOIDA Board
dated 22.06.2021 for engagement
of
Assistant Managers through outsourcing
from the GeM Portal, an administrative
decision was taken to fill up these posts
through Service Providers. A detailed
proposal was drawn up, for which the
necessary administrative and financial
approval was given by the Chief Executive
Officer, Greater NOIDA on 18.07.2021.
Before that was done, on 14.07.2021, the
Greater NOIDA sent a report to the State
Government, carrying details of vacancy in
different Departments and permission was
sought to fill up these vacancies through
Manpower Supply Agencies or Service
Providers.

5. Once all these decisions were taken
by the Greater NOIDA, a tender notice dated
31.07.2021 was published inviting bids
from Manpower Supply Agencies/ Service
Providers. Different Agencies submitted
their tenders and it is the petitioners' case
that the tender of one M/s. Madhav
Associates,
G-36,
Sector-5,
Daurala,
NOIDA, District Gautam Budh Nagar was
accepted on 13.09.2021. The bid was
accepted for provision 117 employees by
M/s. Madhav Associates. For the 117 posts
to be filled up through a Service Provider,
the want was shown on the Sewa Niyojan
Portal of the Employment Office. Against
the 117 vacancies, 339 candidates applied
on the Sewa Niyojan Portal. The aforesaid
list was forwarded by the Service Provider
M/s.
Madhav
Associates
to
the
Establishment Department, where after
scrutiny,
the
Personnel
Department
consented to intimate candidates, calling
them for interview. M/s. Madhav Associates
sent information to candidates to participate
in the interview conducted by officers of
different Departments of the Greater
NOIDA. These intimations were sent on the
petitioners' mail on 03.12.2021. On receipt
of intimation from Outsourcing Agency/
Service Provider M/s. Madhav Associates,
the petitioners and the other candidates
participated in the interview conducted by
the Greater NOIDA. The attendance record
of the candidates was maintained.

6. On 28.02.2022, the Senior Manager
(Technical) called a report about Technical
Supervisors, who have been working for
them for more than five years. The Senior
Manager (Project) submitted reports dated
26.04.2022 and 01.04.2022 to the Senior
Manager (Technical), Greater NOIDA,
indicating the qualifications, designation
and the period of work of different
personnel, who had worked as Technical
Supervisors with the Greater NOIDA. The
said reports included the names of all the
petitioners. On the basis of the aforesaid
reports, the Additional Chief Executive
Officer, Greater NOIDA finalized the names
of Junior Engineers (Civil) to be recruited,
but showing them deployed through the
Placement Agency/ Service Provider M/s.
Madhav Associates vide order dated
04.05.2022. On 20.06.2022, the Additional
Chief Executive Officer issued an office
order, directing placement of the petitioners
as Junior Engineers/ Assistant Managers
5 All. Om Veer & Ors. Vs. State of U.P. & Ors.
705
(Civil). On 06.01.2023, a complaint was laid
against the Placement Agency/ Service
Provider M/s. Madhav Associates and
another Service Provide M/s. Radha
Krishna. An inquiry was conducted into the
matter by a Two-Member Committee,
comprising of Greater NOIDA officials. The
report, that was submitted, pointed out that
M/s. Madhav Associates provided 36
employees against the 117 posts and in that
hiring, the prescribed procedure was not
adopted. It is further pointed out that out of
the 36 employees provided by M/s. Madhav
Associates, 30 were newly engaged hands
whereas 6 were experienced hands, working
with the Greater NOIDA, amongst whom
the five petitioners are included. The other
Placement Agency, M/s. Radha Krishna
Service
Provider
had
provided
200
employees, out of whom 187 were old hands
and 13 new recruits.

7. Now, by the order impugned dated
30.01.2023 passed by the Special Executive
Officer (Personnel), Greater NOIDA, 36
hands engaged through M/s. Madhav
Associates have been directed to be returned
to the Service Provider, which in effect
terminates their services with the Greater
NOIDA. This includes the 6 existing
contractual employees now hired through
M/s. Madhav Associates. It includes the
petitioners.

8. It is pointed out that one Arvind
Kumar, whose services were discontinued
on the basis of the inquiry report dated
06.01.2023, submitted an application to the
Additional Chief Executive Officer, Greater
NOIDA, requesting that he may be
permitted to continue in service. By an order
dated 03.02.2023, the Additional Chief
Executive Officer accepted Arvind Kumar's
application and he was permitted to continue
in service. Arvind Kumar's application and
the note-sheet accepting the petitioners'
applications by the Additional Chief
Executive Officer, Greater NOIDA dated
01.02.2023 and 03.02.2023, respectively,
are both annexed as Annexure Nos. SA-1 to
the second supplementary affidavit filed on
the petitioners' behalf.

9. The petitioners' further case is that
Greater NOIDA invited bids through the
GeM Portal for engagement of employees
on various posts, including those of the
petitioners. In this regard, a copy of the
tender notice dated 27.01.2023 is annexed as
Annexure
No.
SA-5
to
the
second
supplementary affidavit. It is also the
petitioners' case that the Greater NOIDA has
engaged 10 retired employees on different
posts, which show existing vacancy and
availability of work. The petitioners plead a
case of discrimination and arbitrariness on
the Greater NOIDA's part in disengaging
them, inasmuch as services of persons,
junior to them, have been retained and other
freshmen have been hired. They have also
questioned the policy of keeping sanctioned
posts vacant and taking work for years
through outsourced employees. They have
pleaded a case that outsourcing is a
camouflage to pursue a policy of pick and
choose. They have attempted to substantiate
it by pleadings and materials, including their
supplementaries.

10. A counter affidavit has been filed
on behalf of the Greater NOIDA. The stand
taken in the counter affidavit is that the post
of a Junior Engineer, on which the
petitioners were earlier not working and had
now been engaged through a Service
Provider, is a post that is under the purview
of the Uttar Pradesh Industrial Development
Authority Centralized Services governed by
the Uttar Pradesh Industrial Development
Authorities Centralized Service Rules,
706 INDIAN LAW REPORTS ALLAHABAD SERIES
2018. The said posts have already been
advertised for regular selection by the
Subordinate
Selection
Board.
In
the
circumstances, for a period of six months or
till duly selected Junior Engineers join, the
Greater NOIDA Board by its Resolution
No.122/10 dated 22.06.2021 had taken a
decision to engage through outsourcing.
Thus, this engagement is by way of a stop
gap arrangement for a period of six months
and not beyond. The sanctioned fund is also
for a period of six months to pay for these
engagements. It is also pleaded that the
petitioners were earlier working on the post
of Technical Supervisors and not Junior
Engineers. They have applied afresh
through outsourcing and were engaged as
Junior Engineers, and have never worked as
Junior Engineers prior to their recruitment
through the Service Provider.

11. It is further pleaded on behalf of the
respondents that there is no provision for
engagement of Junior Engineers beyond six
months, and, therefore, it is not correct to
say that the Board have granted permission
for appointment vide resolution dated
22.06.2021 for a period of six months or till
regularly selected candidates join. The
number of posts of Executive Engineers,
Assistant
Engineers
(Civil),
Assistant
Engineers (Electrical), Junior Engineers
(Civil), Junior Engineers (Electrical), have
been requisitioned to the Subordinate
Service Commission, where selections are
pending. In the meantime, to meet the
exigencies of work, the Board by their
resolution dated 22.06.2021 provided for
engagement of hands through outsourcing
of manpower by bidding on the GeM Portal.

12. It is pointed out that in the present
case, an interim order was passed on
14.03.2023, directing the respondents to
continue taking work from the petitioners, as
they were doing earlier. However, on the
respondents' appeal, the Division, has
vacated the order dated 14.03.2023 vide an
order dated 06.04.2023, directing the
present writ petition to be heard on merits.

13. It is pleaded that there is no
relationship of master and servant between
the petitioners and the Greater NOIDA, and
their services have been hired on contract
through
a
Service
Provider.
The
applicability of the Government Order dated
18.08.2020 has also been pleaded to in
paragraph No.17 of the counter affidavit to
say that it does not extend any protection of
employment to the workforce that is
engaged. About the complaints, it is said that
the complaints related to favouritism, pick
and choose in the engagement of the
workforce through Service Providers, where
a detailed inquiry was conducted and the
complaint
found
substantiated.
It
is
particularly pleaded that when the term of
six months has already expired, for which
which the petitioners' services were hired in
a stop gap arrangement, they have been
returned to the Placement Agency.

14. Heard Mr. Uma Nath Pandey,
learned Counsel for the petitioners, Ms.
Anjali Upadhya, learned Counsel on behalf
of respondent Nos. 2 and 3 and Mr. Girijesh
Kumar Tripathi, learned Additional Chief
Standing Counsel appearing on behalf of the
State.

15. Upon hearing learned Counsel for
the parties, this Court finds that it is true that
the petitioners were engaged over a long
period of time in the capacity of Work
Supervisors, as the Greater NOIDA says, or
Assistant Managers, as the petitioners say,
directly by the Greater NOIDA. They have
worked for varying period of time for 17-23
years. The shortest period for which the
5 All. Om Veer & Ors. Vs. State of U.P. & Ors.
707
fourth petitioner, Mohit Chaudhary has
worked with the Greater NOIDA is 10 years.
Naveen Kumar was engaged in the year
1999 and Om Veer in the year 2007. There
were no Service Provider back then.
Therefore, the arrangement now brought
about to show that the petitioners have been
hired through an Outsourcing Agency or a
Service Provider, does somewhat appear to
be a camouflage. The explanation that has
been given by the Greater NOIDA that the
service of a Junior Engineer is now part of a
centralized service, already notified to the
Subordinate Service Board, is plausible to
the extent that a Junior Engineer can no
longer be recruited or even if permitted to
work on an ad hoc arrangement, cannot be
regularized on that post. It may also be true
that the decision taken by the Board to hire
through Service Providers, may have been a
pro tem arrangement so far as posts of Junior
Engineers were concerned, till regularly
selected candidates were available, but the
fact cannot be denied that the petitioners
were working as Work Supervisors for long
periods of time with the Greater NOIDA. To
show them to have been recruited through a
Service Provider, does not appear to be
forthright action, particularly so, as the
mechanism of hiring hands through Service
Providers, has clearly followed a policy of
retaining old hands for felicity of work,
which the petitioners, and many others like
them, as old hands, are proficient in.

16. The remarks of the Division
Bench, while vacating the interim order,
upon which much emphasis has been placed
by the learned Counsel for the respondents,
are not very relevant, because those are
confined to the interim matter. All that their
Lordships of the Division Bench held was
that the interim order, that was earlier passed
by this Court, amounted to grant of final
relief. It has no bearing on the merits of the
parties' case at the hearing. This position of
the law has been clarified by the Division
Bench in the concluding part of the order
dated 06.04.2023. No further allusion,
therefore, need be made to it.

17. The position appear to be
undisputed that 187 old employees, who
were engaged through the other Service
Provider M/s. Radha Krishna, have been
retained, whereas services of the petitioners
have been dispensed with. There is no
pleading to indicate if the employees, whose
services have been retained are of the same
class or cadre as the petitioners' or different
from them. They are apparently junior to the
petitioners, but to what cadre they belong, is
not shown. So far as one of the employee
Arvind Kumar, whose services have been
extended later on by the Additional Chief
Executive Officer, Greater NOIDA on his
application, is concerned, it is apparent that he
is a news writer, the holder of a completely
different post. Very different consideration
may apply in his case. Also, the petitioners
were holding positions, other than Junior
Engineers, as the Greater NOIDA themselves
say. They were Work Supervisors earlier. It is
not the Greater NOIDA's case that this post
has become part of a centralized service.
Junior Engineers too, it is not shown, have
already been recruited on a regular basis and
the work that they have to do, would have to
be undertaken through someone. Given the
nature of a Junior Engineer's job, unless
regularly selected staff of the Centralized
Service are available, their work cannot be left
unattended by the Greater NOIDA. It would
apparently have to be handed over to
someone, who would be a freshman. This
would involve hiring of fresh hands replacing
the petitioners for no ostensible reason.

18. The mention of inquiry, that was
held into the recruitment, would be relevant
708 INDIAN LAW REPORTS ALLAHABAD SERIES
only to the extent that the Service Providers
hired fresh hands. There cannot be any case
about favouritism in relation to the
petitioners, who have track records for 1023 years with the Greater NOIDA. This
Court does not mean to say that we intend to
thrust upon the Greater NOIDA the
petitioners to be hired as employees, but at
the same time, the Greater NOIDA, being an
establishment of the State, ought not to pick
and choose, throwing out able and
experienced hands and replacing them by
fresh hands for no ostensible and reason
individuate to each case. It is precisely this
what they have done here. By one stroke of
pen, they have thrown out all the five
petitioners and another old hand along with
a new staffer under the garb of returning
them to the Service Provider. The truth of
the matter is their services were never
secured through a Service Provider. Rather,
they were placed in the Service Provider's
lap to effect a change of label and dub them
as workers, whose services have come
through a Service Provider. The petitioners
had been on the Greater NOIDA's roll
directly, may be as contractual employees,
over periods of time, spreading from 10-23
years.

19.

In
these
circumstances,
dispensation of the petitioners' services in
the fashion, that has been done through the
order impugned, appears to be unreasonable,
arbitrary and discriminatory.

20. Quite apart from this fact is another
feature of the matter that cannot be ignored.
The issue, that is involved here, fell for
consideration before a Division Bench of
this Court, on appeal from a learned Single
Judge's order, in Ashok Kumar and others
v. State of U.P. and others, 2019 SCC
OnLine All 7333. The facts in Ashok
Kumar (supra) may best be recapitulated in
the words of their Lordships, as these figure
in the report, which reads:

"3.
Briefly,
the
petitionersappellants (who are 27 in number), claim
they had been engaged by GNOIDA through
various placement agencies to work on
different posts, inter alia Draughtsman
Grade-II, Architectural Assistant, Assistant
Grade-II,
Supervisor,
Water
Tester/Supervisor, Programmer Grade-II,
Accountant Grade-II, Personal Assistant,
Manager
II/Management
Training,
Manager-I(Planning).
The
date
of
engagement of different petitioners ranges
from November, 1993 to February, 2011.
However, all petitioners-appellants claim to
be continuously engaged from the date of
their first joining though, the placement
agency through whom they were engaged by
GNOIDA have changed over the years. As
to the nature of work performed by them, it
was further claimed to be permanent in
nature. In such facts, the present petitionersappellants had earlier filed Writ A No.
61127 of 2012 (Ashok Kumar v. State of
U.P.). It was disposed of vide order dated
26.11.2012 directing the Chief Executive
Officer of GNOIDA to take a proper
decision on the representation made by the
petitioners-appellants
to
claim
regularization in service of GNOIDA. By
order dated 08.07.2013 passed by the Chief
Executive Officer of GNOIDA, the aforesaid
representation
was
rejected.
It
was
reasoned, GNOIDA had not engaged any of
the petitioners-appellants as contractual
workmen but that the said authority had
awarded
works
contract
to
different
contractors against payment. For execution
of the work thus awarded, the contractors
had engaged the petitioners-appellants and,
therefore, there was no master-servant
relationship between any of the petitionersappellants and GNOIDA. Payment was also
5 All. Om Veer & Ors. Vs. State of U.P. & Ors.
709
claimed to have been made by the GNOIDA
to the individual contractors and by those
contractors to the petitioners-appellants. In
absence of letters of appointment, the
designation given to the petitionersappellants by the GNOIDA was explained
on grounds of convenience. The case of the
petitioners-appellants
was
also
distinguished from 27 other persons to
whom relief of regularization had been
granted upon their dispute being finally
decided by the Supreme Court. The same
was described as one time measure adopted
by GNOIDA. Further, it was reasoned that
the petitioners-appellants could have gained
employment only by applying against
sanctioned posts as and when the same had
been advertised, if they fulfilled the
eligibility conditions for the same."

21. The petitioners in the writ petition,
that was in appeal before the Division
Bench, had claimed quashing of a similar
order and a further direction to regularize the
petitioners in service. Here, the petitioners
have sought a direction to restrain the
respondents from interfering in their work as
Assistant Managers (Civil) and to pay them
salary every month. The learned Single
Judge had dismissed the petition. The
Division Bench, at the time of admission of
the appeal, formulated three questions,
which read:

"(1)
Whether
appellantpetitioners are deemed to be contractual
employees of the Greater Noida Industrial
Development Authority in view of the fact
that they are in employment of it from the
period more than a decade irrespective of
the fact that their Service Provider was
changed?

(2) Whether continuance of the
appellants-workmen
on
daily
rate
basis/contractual basis through Service
Providers, with their change time-to-time
amount to an unfair labour practices as per
Clause (x) of the Schedule V of the Industrial
Disputes Act, 1947?

(3) Whether under U.P. Industrial
Development Authority Centralized Service
Rules, 2018, the Chief Executive Officer of
the respondent authority is empowered to
make regularization of the services of the
appellant-petitioners?"

22. After considering all issues raised,
including that, that it was essentially a
matter of contract and a writ petition did not
lie, their Lordships of the Division Bench
held that the defence about the petitioners
serving
on
contract
through
Service
Providers, appears to be hollow, and in a
case like this, to cure patent injustice by
State Authorities, a writ under Article 226 of
the Constitution would issue. The matter
was remitted to the Greater NOIDA, as the
petitioners had claimed regularization on the
basis of Government Orders, antedating the
centralization of services. Here, that
question may not be involved and the rights
of the petitioners are limited to continue in
service as Junior Engineers (Civil) till
regularly selected candidates join, or to
continue in service on posts that they
occupied earlier, which may not be part of
the centralized service. Be that as it may, the
three questions formulated were answered
by the Division Bench in the following
manner in Ashok Kumar:

"22. .... Also, in view of the fact
that the order of admission formulated three
questions, it is considered appropriate to
answer the same. Thus, Question No. 1 is
answered partly in the affirmative, i.e. the
petitioners-appellants
are
deemed
contractual employees of GNOIDA. As to
the length of their service, the matter is
being remitted to respondent No 1 for
710 INDIAN LAW REPORTS ALLAHABAD SERIES
passing appropriate orders within a period
of three months from today. Question No. 2
is answered thus: the GNOIDA has
apparently set up a false plea of having
engaged the petitioners-appellants through
works contractors. In view of the discussion
made above, that arrangement is held to be
a device to escape the liability of law. On
Question No. 3, we are of the opinion that
though the right of the petitionersappellants to be regularized arose under the
Government Order dated dated 24.02.2016,
how ever, in view of the subsequent
centralization
of
the
services,
the
appropriate decision is to be made by
respondent No. 1 on behalf of the State."

23. The answer to the second question
is relevant to the issue here, inasmuch as the
plea of engagement through Service
Providers here too appears to be without
basis as we have already held. We have not
reasoned to reach that conclusion on lines
that their Lordships of the Division Bench
did by looking into the absence of service
contracts with the Service Providers. We
have drawn that inference from the fact that
it is not disputed that the petitioners worked
as Technical Supervisors, sometimes called
Assistant Managers, for long periods of time
before
the
Government
Order
dated
18.08.2020
was
introduced
and
a
mechanism for engagement of hiring hands
through Service Providers became available
to the Greater NOIDA.

24. It is noticed that though for the
posts of Junior Engineers (Civil), which the
petitioners held, it is the Greater NOIDA's
case that these are now part of the
centralized service and requisition has been
sent to the Subordinate Staff Selection
Board, but there is no indication, if for the
present, all the posts of Junior Engineers, or
even some have been filled up through
recruitment done by the Staff Selection
Commission, and, secondly, it is not shown
if the petitioners holding as they were,
positions of Work Supervisors earlier, still
have the said work to do in the respondents
Establishment. If that work is available, it is
also not shown why the petitioners have
been shunted out, as we have already
observed, in an unceremonious manner,
after being retained for long periods of time,
without any case being pleaded against one
or the other petitioners, that may have
suddenly rendered all, some or one of them,
unfit to be retained in service. This appears
to be an impulsive and arbitrary decision,
that cannot be termed reasonable at least on
the existing material placed before the
Court.

25. In the circumstances, this petition
succeeds and is allowed in part. The
impugned order dated 30.01.2023 passed by
the Special Executive Officer (Personnel),
Greater NOIDA, District Gautam Budh
Nagar, is hereby quashed. A mandamus is
issued to the Chief Executive Officer and the
Special Executive Officer (Personnel),
Greater
NOIDA,
to
re-consider
the
petitioners' case for a re-engagement on the
posts of Civil Engineer (Civil), if regularly
selected candidates by the Commission have
already not joined or on the post of a Work
Supervisor, or other suitable posts, on which
they have served in past, in accordance with
law, bearing in mind the remarks in this
judgment. The aforesaid order shall be
passed within four weeks of the date of
receipt of a copy of this order by the Chief
Executive Officer, Greater NOIDA and the
Special Executive Officer (Personnel),
Greater NOIDA.

26. Let a copy of this order be
communicated each to Chief Executive
Officer, Greater NOIDA and the Special
5 All. Vidya Sagar Vs. State of U.P. & Ors.
711
Executive Officer (Personnel), Greater
NOIDA by the Registrar (Compliance).

27. There shall be no order as to costs.
----------
(2024) 5 ILRA 711
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.05.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 8107 of 2014

Vidya Sagar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Kamlendra Singh Jadaun, Sri Radha Kant
Ojha, Sri Satyendra Chandra Tripathi

Counsel for the Respondents:
C.S.C., Sri Bhupendra Kumar Yadav, Sri
Shashi Dhar Pandey, Sri Upendra Upadhyay

A. Service Law - Constitution of India -
Article 23 - Begar - Recovery of salary paid
for service discharged during extra period
- Permissibility - Date of birth of the
petitioner, the Assistant Teacher, was
found forged - Board's record reveal DoB
21.01.1955,
however,
High
School
Certificate with DoB 21.01.1950 was
issued - On the complaint, the authority
found
forgery
and
therefore
superannuated the petitioner from service
withholding the post retiral benefits -
Validity challenged - Held, salary received
by the petitioner for the extra years he
served, cannot be recovered from his eSt.
in the hands of his, not even from the
petitioner - Prohibition from recovering
the entire salary, amongst others, was
founded on the principle of prohibiting
begar enshrined in Article 23 of the
Constitution - The petitioner would be
entitled to sanction of a final family
pension worked out on that basis and so
also
gratuity
and
other
post
retiral
benefits, to which she is entitled as the
deceased's
widow
for
the
services
rendered by him. (Para 15 and 19)

Writ petition allowed in part. (E-1)

List of Cases cited:

1. Sushil Kumar Pandey Vs St. of U.P. & ors.;
2010 (7) ADJ 617 (DB)

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed against
an order passed by the Basic Shiksha
Adhikari, Firozabad dated 16.12.2013,
directing inter alia that the petitioner, the
Headmaster of Junior High School, Bhitari,
Block Narkhi, District Firozabad, be
relieved of his duties forthwith having
superannuated, a First Information Report
lodged against him and the payment of his
retiral dues stopped until salary paid to him
in
excess
beyond
the
age
of
his
superannuation is recovered.

2. On 10.02.2014, when this petition
came up for admission, this Court, while
issuing a notice of motion to the other side,
passed an interim order in the following
terms:

"It is directed that the recovery
sought to be made against the petitioner in
pursuance of the impugned order dated
16.12.2013 shall remain stayed till the next
date of listing.

Sri Radha Kant Ojha very fairly
requests that for the time being subject to the
outcome of this writ petition the petitioner
may at least be allowed provisional pension
taking his date of retirement to be 30.6.2012
for his livelihood. Respondents do not have
any objection to this proposal. It is further
directed that treating the date of retirement