# Pramod Kumar Pandey v. State of U.P. and others

- **Citation:** (2010) 3 ILRA 1027
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-08-17
- **Case number:** Special Appeal No. 116 of 2007
- **Bench:** Sunil Ambwani, Kashi Nath Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pramod-kumar-pandey-v-state-of-u-p-and-others-41717
- **Pages:** 6

## Headnote

Constitution
of
India
Art.
226Regularisation-daily
wagers
working
under state election Commission-seeking
benefit judgment of D.B. Which was
allowed-upheld
by
the
Apex
Court
treating
Representation
for
Regularisation-as application-direction by
single judge to given benefit of the
direction of Apex Court reported in AIR
1995 S.C. 1115-contrary to the mandet of
Apex court in Uma Devi Case-Can not
sustain-if they are eligible and have
participated in Regular selection process
every thing equal-their candidature may
be considered with other candidates
without giving preferential consideration.

Held: Para 17

We are thus of the opinion therefore find
that the directions dated 14.12.2000 in
Special Appeal No. 784 of 2000 for
considering
the
candidature
of
the
petitioner for permanent appointment by
giving
him
the
benefit
of
service
rendered
by
him
are
no
longer
enforceable. The petitioner is required to
be
considered
along
with
other
candidates
for
selection
under
the
statutory rules, provided he is eligible to
apply and any permanent vacancy is
available and is advertised.
Case law discussed:
[AIR 1995 SC 1115], [(2006 (4) SCC 1], [AIR
2009 SC 3121].

## Text

3 All] Pramod Kumar Pandey V. State of U.P. and others
1027
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.8.2010

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE KASHI NATH PANDEY, J.

Special Appeal No. 116 of 2007

Pramod Kumar Pandey
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Shamimul Hasnain
Sri Amit Saxena
Sri P.N. Saxena

Counsel for the Respondents:
Sri P.K. Mishra
Sri P.N. Rai
C.S.C.

Constitution
of
India
Art.
226Regularisation-daily
wagers
working
under state election Commission-seeking
benefit judgment of D.B. Which was
allowed-upheld
by
the
Apex
Court
treating
Representation
for
Regularisation-as application-direction by
single judge to given benefit of the
direction of Apex Court reported in AIR
1995 S.C. 1115-contrary to the mandet of
Apex court in Uma Devi Case-Can not
sustain-if they are eligible and have
participated in Regular selection process
every thing equal-their candidature may
be considered with other candidates
without giving preferential consideration.

Held: Para 17

We are thus of the opinion therefore find
that the directions dated 14.12.2000 in
Special Appeal No. 784 of 2000 for
considering
the
candidature
of
the
petitioner for permanent appointment by
giving
him
the
benefit
of
service
rendered
by
him
are
no
longer
enforceable. The petitioner is required to
be
considered
along
with
other
candidates
for
selection
under
the
statutory rules, provided he is eligible to
apply and any permanent vacancy is
available and is advertised.
Case law discussed:
[AIR 1995 SC 1115], [(2006 (4) SCC 1], [AIR
2009 SC 3121].

(Delivered by Hon'ble Sunil Ambwani, J.)

1. We have heard Sri P.N. Saxena,
assisted by Sri Amit Saxena for the
appellant. Sri P.K. Mishra, appears for
respondent Nos. 2 to 4 - State Election
Commission.
The
standing
counsel
appears for respondent No.1.

2. In this intra-court appeal, the
petitioner-appellant is aggrieved by the
judgement of learned Single Judge dated
27.8.2004 in writ petition No. 18730 of
2003, in which a direction was issued that
the benefit of giving preference allowed
in the judgement of Supreme Court in
U.P. State Road Transport Corporation
Vs. U.P.P.N.S.B. Sangh [AIR 1995 SC
1115] (in that all other things being equal
the petitioner will be given preference in
direct recruitment), be allowed, if the
petitioner applies for any post of clerk to
fall vacant for future under the State
Election Commission. The Court has
further directed to allow other benefits,
which are available to him under para 12
of the judgement of the Supreme Court.

3. The facts given in the judgement
under challenge and other judgements of
this Court, deciding petitioner's writ
petitions, are that the petitioner had
worked on daily wages of contract, at the
rate of Rs.45/- per day as clerk in the
State Election Commission in District
Sonebhadra from 26.3.1995 to 9.2.1996.
He filed a writ petition No. 6570 of 1996
1028 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
in which an interim order was passed on
20.2.1996 directing that the question of
appointment of the petitioner for the
purpose of election work in the next
Parliament Election may be considered.
He was allowed to continue from
1.4.1996. His wages were however paid
only till 28.2.1997. The writ petition was
disposed of on 20.1.1998 with following
directions:-

"This writ petition is finally disposed
of with the direction that in case the
petitioner is actually working from
1.3.1997 and is still working, he shall be
paid his salary of the post of clerk and
that his case for regularization in service
or for regular appointment against
available vacancy shall be considered
according to law by the respondent No.2,
who shall pass a speaking order within a
month from the date of production of a
certified
copy
of
this
order.
The
termination orders dated 9.2.1996 and
28.2.1997 shall stand quashed."

4.

The
petitioner-appellant's
representation for regularization was
rejected. He filed a writ petition No. 7170
of 2000, which was dismissed on
29.11.2000. The Special Appeal No. 784
of 2000 was allowed in part on
14.12.2000 with following directions:-

"Having considered the submissions
of the learned counsel for the parties, we
are of the view that in the event there are
permanent vacancies available and the
State Election Commission feels to fill up
the same, the case of the petitioner along
with other candidates should also be
considered for permanent appointment
and the services rendered by the writ
petitioner should also be taken into
account
while
giving
permanent
appointment."

5. The petitioner-appellant thereafter
filed a contempt application No. 2409 of
2001 for compliance of the order of the
Division Bench in Special Appeal No.
784 of 2000. An objection was taken that
the
petitioner
did
not
apply
for
appointment
in
response
to
the
advertisement issued on 15.12.2000, for
filling up of 49 posts of Clerks and
Typists under direct recruitment. Learned
Judge hearing the contempt application on
12.9.2002 found that there was no such
direction given by the court to the
petitioner
to
apply,
and
that
the
consideration of his appointment was not
subject to making an application. Learned
Judge hearing the contempt
matter
summoned the opposite parties to appear
before the Court on 29.10.2002 for
framing of charges. The authorities
appeared before the Court. On the
explanation given by them, the contempt
application was dismissed on 6.1.2003
holding
that
there
was
no
wilful
disobedience of the order of the Division
Bench dated 14.12.2000.

6. The petitioner filed a Special
Leave Petition against the order dated
6.1.2003
dismissing
the
contempt
application. The Supreme Court on
7.4.2003 dismissed the SLP with the
following order:-

"In our view impugned order passed
in contempt proceedings does not call for
our
interference,
however,
if
the
petitioner's rights are affected and orders
passed by the courts are not complied
with, it would be open to him to resort to
any
other
alternative
remedy
for
3 All] Pramod Kumar Pandey V. State of U.P. and others
1029
execution including the filing of a fresh
writ petition.

The
Special
Leave
Petition
is
dismissed accordingly."

7. The petitioner therafter filed writ
petition No.18730 of 2003 which was
disposed of vide order dated 27.8.2004
giving rise to this Special Appeal.

8. Learned Single Judge has found
that the main dispute between the parties
is not regarding the requirement of filing
application. If it was the only dispute then
the same could be resolved within no time
either
by
treating
petitioner's
representation dated 23.12.2000 as an
application to that effect or by directing
the petitioner to file a formal application
for appointment. The main controversy
revolves around the interpretation of the
judgement of Special Appeal. He found
correct
interpretation
of
the
said
judgement is that the petitioner has to be
given preference in the appointment
taking into account the period of service
rendered by him. The judgement of the
Division Bench cannot be read to hold
that the appointment has to be given
without considering him for along with
other candidates. The writ petition was
accordingly disposed of with directions
that if the petitioner applies for any future
post of Clerk under the State Election
Commission, he will be given benefits as
provided
under
para
12
of
the
U.P.S.R.T.C's case (Supra).

9. The petitioner is now 40 years of
age. The maximum age limit prescribed
for the general category candidates to be
given appointment in the State services is
35 years.

10. Sri P.N. Saxena submits that
learned
Judge
has
not
correctly
appreciated the directions given on
14.12.2000 in Special Appeal No. 784 of
2000. The petitioner was required to be
considered for appointment on permanent
vacancies taking into account the service
rendered by him. He was not required to
apply, and that on 15.12.2000 when the
vacancies were advertised, the judgement
dated 14.12.2000 had to be complied
with, by considering the petitioner for
appointment irrespective of the fact that
he did not apply. He submits that the
order dated 14.12.2000 in Special Appeal
No. 784 of 2000 has become final and has
not been complied with so far. The State
Election Commission is bound to give
appointment to the petitioner on any
permanent vacancy, after taking into
account the services rendered by him.

11. The petitioner had worked as
Clerk on contract with the State Election
Commission for a period of less than 11
months
(between
26.3.1995
and
9.2.1996), and thereafter from 1.4.1996 in
pursuance to the interim order of this
Court in writ petition No. 6570 of 1996.
The later period was litigious in nature,
which came to an end after rejection of
his representation for regularization and
dismissal of writ petition No. 7170 of
2000, on 29.11.2000. The Special Appeal
No. 784 of 2000 was allowed in part on
14.12.2000, with directions that in the
event permanent vacancies are available
and the State Election Commission
decides to fill up the same, the case of the
petitioner along with other candidates
should also be considered for permanent
appointment taking into account and
giving preference to past services.
1030 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

12.

In
Secretary,
State
of
Karnataka Vs. Umadevi (3) [(2006 (4)
SCC 1], the Supreme Court held that any
appointment through side door would be
violative of constitutional scheme of
equality contained in Articles 14 and 16
of the Constitution. Para 43 of the
judgement of the Supreme Court in
Umadevi
case
(supra)
is
quoted
hereunder:-

"43. Thus, it is clear that adherence
to the rule of equality in public
employment is a basic feature of our
Constitution and since the rule of law is
the core of our Constitution, a court
would certainly be disabled from passing
an order upholding a violation of Article
14 or in ordering the overlooking of the
need to comply with the requirements of
Article 14 read with Article 16 of the
Constitution. Therefore, consistent with
the scheme for public employment, this
Court while laying down the law, has
necessarily to hold that unless the
appointment is in terms of the relevant
rules and after a proper competition
among qualified persons, the same would
not confer any right on the appointee. If it
is
a
contractual
appointment,
the
appointment comes to an end at the end of
the contract, if it were an engagement or
appointment on daily wages or casual
basis, the same would come to an end
when it is discontinued. Similarly, a
temporary employee could not claim to be
made permanent on the expiry of his term
of appointment. It has also to be clarified
that
merely
because
a
temporary
employee or a casual wage worker is
continued for a time beyond the term of
his appointment, he would not be entitled
to be absorbed in regular service or made
permanent, merely on the strength of such
continuance, if the original appointment
was not made by following a due process
of selection as envisaged by the relevant
rules. It is not open to the court to prevent
regular recruitment at the instance of
temporary employees whose period of
employment has come to an end or of ad
hoc employees who by the very nature of
their appointment, do not acquire any
right. The High Courts acting under
Article 226 of the Constitution, should not
ordinarily issue directions for absorption,
regularisation, or permanent continuance
unless the recruitment itself was made
regularly
and
in
terms
of
the
constitutional scheme. Merely because an
employee had continued under cover of
an order of the court, which we have
described as "litigious employment" in the
earlier part of the judgment, he would not
be entitled to any right to be absorbed or
made permanent in the service. In fact, in
such cases, the High Court may not be
justified in issuing interim directions,
since, after all, if ultimately the employee
approaching it is found entitled to relief, it
may be possible for it to mould the relief
in such a manner that ultimately no
prejudice will be caused to him, whereas
an interim direction to continue his
employment would hold up the regular
procedure for selection or impose on the
State the burden of paying an employee
who is really not required. The courts
must be careful in ensuring that they do
not interfere unduly with the economic
arrangement of its affairs by the State or
its instrumentalities or lend themselves
the instruments to facilitate the bypassing
of
the
constitutional
and
statutory
mandates.

13. In the present case, the order of the
Division Bench dated 14.12.2000 in Special
Appeal No. 784 of 2000 does not amount to
giving any directions, to give appointment
3 All] Pramod Kumar Pandey V. State of U.P. and others
1031
to the petitioner dehorse the service rules.
The petitioner-appellant was required to
apply when the advertisement was made by
the State Election Commission to be
considered for appointment along with
other candidates. The only benefit which
could be given to the petitioner-appellant
was to give benefit of service rendered by
him, if he is otherwise eligible, and all other
things are equal in comparison with other
candidates.

14.

In
General
Manager,
Uttaranchal Jal Sansthan Vs. Laxmi Devi
and others [AIR 2009 SC 3121], the
Supreme Court held:-

"24. As to the first submission above,
it is worth mentioning that judicial
decisions unless otherwise specified are
retrospective.
They
would
only
be
prospective in nature if it has been
provided therein. Such is clearly not the
case in Umadevi (supra). Accordingly,
even though the cause of action would
have arisen in 2002 but the decision of
Umadevi (supra) would squarely be
applicable to the facts and circumstances
of the case. Secondly, before a person can
claim a status of a government servant not
only his appointment must be made in
terms of the recruitment rules, he must
otherwise fulfill the criterion therefore
Appointment made in violation of the
constitutional
scheme
is
a
nullity.
Rendition of service for a long time, it is
well known, does not confer permanency.
It is furthermore not a mode of
appointment."

15. Sri P.N. Saxena, submits that
judgment dated 14.12.2000 in Special
Appeal No. 784 of 2000 has become final
between the parties and that any view
taken or judgement delivered by the
Supreme
Court
subsequent
to
that
decision cannot take away the binding
effect of the judgement. The State
Election Commission has to comply with
the directions and provide employment to
the petitioner. He would submit that effect
of Umadevi (3) (Supra) case is not to
rewind the clock, and to take away the
effect of the final orders passed by this
Court deciding rights of the citizens of the
country.

16. The Supreme Court has warned
the High Court, in no uncertain terms, not
to issue directions contrary to the law laid
down in Umadevi (3) (Supra). Even if
there are any directions given by the court
for giving appointment, dehorse the rules,
after the constitution bench judgement in
Umadevi (3) (supra), the High Court
cannot issue a writ of mandamus to
implement such direction. The Supreme
Court has not only laid down the law but
has also issued strict and stern directions,
to adhere to the constitutionalism and to
follow the direction of the Supreme Court
which protect the rights of the citizens
under Articles 14 and 16 of the
Constitution. The Supreme Court has held
that courts in the country, under the
having constitutional scheme, do not have
powers to issue direction to disobey the
law. If there is any such directions, the
appellate court or even the coordinate
bench hearing the matter, can refuse to
implement it, provided it gives sufficient
reason.

17. We are thus of the opinion
therefore find that the directions dated
14.12.2000 in Special Appeal No. 784 of
2000 for considering the candidature of
the petitioner for permanent appointment
by giving him the benefit of service
rendered
by
him
are
no
longer
1032 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
enforceable. The petitioner is required to
be considered along with other candidates
for selection under the statutory rules,
provided he is eligible to apply and any
permanent vacancy is available and is
advertised.

18. The Special Appeal is dismissed
with the aforesaid observations.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.09.2010

BEFORE
THE HON'BLE YATINDRA SINGH, J.
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No. 347 of 2004

Banaras Hindu University, Varanasi

 ...Petitioner
Versus
State of UP and another ...Respondents

Counsel for the Petitioner:
Sri V.K.Upadhya
Sri V.K.Singh
Sri Hem Pratap Singh
Sri Yashwant Verma
Sri D.K.Singh
Ms.Pooja Goel

Counsel for the Respondents:
Sri C.K.Parekh
Sri Vivek Verma
Sri Chandan Sharma
C.S.C.

Constitution of India Art 285-Demand of
Service
tax-the
building
owned
by
B.H.U.,IITK
ICAR-although
exempted
from tax-demand of service tax by
respective Municipal Corporation-heldthe
petitioners
being
statutory
corporation and society even being
established by union are not within of
definition of union of India-No service
charge can be charged.
Held: Para 18

The OM only applies to the buildings of
the Union. It does not apply to the
staturory corporation or the societies that
have independent identity. No service
charge
can
be
realised
from
the
petitioners in pursuance of the OM. In
view of this the impugned recoveries
against the petitioners are illegal and are
liable to be quashed.

(Delivered by Hon'ble Yatindra Singh, J.)

1. The main question involved in
these writ petitions relates to the power
of the Municipal Corporation to levy
service charge in pursuance of the office
memo of the Central Government dated
26.4.1994 (the OM).

THE FACTS

2. Article 285 of the constitution
exempts the property of the Union from
the State taxation. The OM was issued
that stating that, though the buildings of
the Union are exempted from the
municipal taxes but they are liable to pay
service taxes as contemplated therein.

First Writ Petition

3. The Banaras Hindu University,
Varanasi (the BHU) is a Central
University
established
by
Central
Government under the Banaras Hindu
University Act (Act No. 16 of 1915). It is
a statutory corporation established under
the Central Act.

4. The Municipal Corporation,
Banaras issued 10 notices dated 39.2.2004 (Annexures-11, 12 and 13 to
the writ petition) under the Municipal
Corporation Act (the Act) informing the