# Prasad Patel v. District Inspector of

- **Citation:** (2012) 2 ILRA 772
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-22
- **Case number:** Civil Misc. Writ Petitions No. 42938 of 1997
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prasad-patel-v-district-inspector-of-42284
- **Pages:** 5

## Text

772 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
revolver. Accordingly, the order dated
14.7.2011 passed by the learned Judicial
Magistrate Ist, Court No. 24, Gorakhpur
and the order dated 15.11.2011 passed by
the learned Sessions Judge, Gorakhpur are
quashed.
The
learned
Magistrate
concerned is directed to release the said
revolver in favour of the applicant within
a period of three weeks from the date, a
certified copy of this order is produced
before
him
after
taking
adequate
guarantee/ security of the said revolver
from
the
applicant
and
also
an
undertaking that the revolver will not be
disposed of during pendency of the
criminal proceedings.

9. With the aforesaid observations,
this application is finally disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.05.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petitions No. 42938 of
1997

Kharanan

 ...Petitioner
Versus
Presiding Officer, Labour Court, Varanasi
and others

 ...Respondents

Counsel for the Petitioner
Sri Shesh Kumar

Counsel for the Respondents
C.S.C.
Sri Neeraj Tripathi
Sri Samir Sharma

Constitution of India, Article 226-writ
against order of Labor Court-deciding
reference against work man-who was
engaged as casual worker on post of
fitter
but
discharged
duty
of
Stenographer-entitled for nomenclature
and pay as of stenographer-as a matter
of fact workman claiming promotionemployer had already given all benefit of
the post on which was engaged-Labour
Court rightly decided reference against
workman-petition dismissed.

Held:Para 8

In the case in hand, Labour Court has
clearly observed that since at no point of
time,
petitioner
was
appointed
as
Stenographer
by
the
competent
authority following procedure prescribed
in law, he was not entitled for post, pay
scale and other benefits on the post of
Stenographer. It is not the case of
petitioner that he was appointed by
competent authority in accordance with
law on the post of Stenographer at any
point of time. He was substantively
appointed as Fitter and was given dues
payable
on
the
said
post.
In
the
circumstances, I do not find any error
apparent on the face of record in the
impugned
award
warranting
interference.
Case law discussed:
1985 UPLBEC 539; 2009 LabIC 905=2008 JT
(10) 578; 1966 (2) SCR 465; Civil Misc. Writ
Petition No. Case 17313 of 1997 (U.P.S.R.T.C.
& Another Vs, Brij Nandan Lal & Others)
decided on 2.5.2012; 2007 (4) ESC 2261 (Alld)
(DB); 2007 (2) ESC 987; AIR 1993 SC 2273;
1991 Supple (2) SCC 733

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard learned counsel for parties
and perused the record.

2. Writ petition is directed against the
award dated 28.11.1996 in adjudication case
no. 51 of 1994 answering the reference
against the workman. It appears that
workman claimed designation, pay scale
and other benefits on the post of
Stenographer though he was substantively
appointed as Fitter. It is contended that for
2 All] Kharanan V. Presiding Officer, Labour Court, Varanasi and others
773
sufficiently
long
time
respondentCorporation has taken work from petitioner
as Stenographer therefore he was entitled
for appointment on the post of Stenographer
i.e. designation, pay scale etc. Reliance is
placed on a decision of this Court in Lallan
Prasad Patel Vs. District Inspector of
Schools,
Deoria
and
others
1985
UPLBEC 539.

3. However, in my view in fact
workman has claimed promotion since
admittedly he was never appointed on the
post of Stenographer by the competent
authority
following
the
procedure
prescribed in Statute.

4. The dispute in the present case, in
my view, is akin and covered by the law
laid down by Apex Court in U.P. State
Sugar & Cane Vs. Chini Mill Mazdoor
Sangh 2009 LabIC 905=2008 JT (10) 578
wherein the workmen were employed as
seasonal workman but they claimed to have
worked throughout the year like permanent
workmen and hence claimed benefit of a
permanent workmen. The reference was
made "whether the workman can be
declared permanent". The Labour Court
answered the reference in favour of the
workmen. The Apex Court referring its
earlier Constitution Bench judgment in
Management of Brook Bond India (P)
Limited Vs. Workmen, 1966 (2) SCR
465;
and
Workmen
Employed
by
Hindustan Lever Ltd. (supra), held in
paras 21, 22, 23 and 24 as under:

"21. That there are different categories
of workers employed in the sugar industries,
and, in particular, during the crushing
season, is not disputed by any of the parties.
It is not denied that apart from the
permanent workmen, the other categories of
workmen are employed during the crushing
season which begins in the month of
October in a given year and continues till
the month of April of the following year. It
is the period during which the sugarcane
crop
is
harvested,
and,
thereafter,
transported to different mills where they are
crushed
for
production
of
sugar.
Admittedly, as will appear from Standing
Order No. 2, a muster- roll of all
employees, who are not permanent, is
maintained by the different sugar mills and
at the beginning of the crushing season the
seasonal labour who had worked during the
previous crushing season are asked to join
their duties for the crushing season in their
old jobs. It is also not denied that the pay
scales of the different categories of
workmen are different.

22. It has been submitted on behalf of
the appellant that even when the seasonal
workmen are employed during the off
season they are paid the same wages as are
paid to them during the crushing season,
which is one of the basic distinctions
between them and permanent workmen who
are on the rolls of the sugar mills. It is also
an admitted position that, in terms of the
policy followed by the sugar mills,
promotions are given from one category to
the next higher category depending on the
number of vacancies as are available at a
given point of time. Even in the instant case,
of the 39 workmen referred to in the terms
of reference, 13 had been made permanent
by the appellant which supports the case of
the appellant that promotion is given from
one category to the higher categories as
and when vacancies are available and that
such function was clearly a managerial
function which could not have been
discharged by the Labour Court.

23. We are in agreement with the
views expressed by the Constitution Bench
774 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
of this Court in the Brooke Bond case
(supra) as also those of the three-Judge
Bench in the Hindustan Lever case (supra).
In our view, this is not a case of fitment
depending on the nature of the work
performed, but a case of promotion as and
when vacancies are available. Both the
Labour Court as well as the High Court do
not appear to have considered this aspect of
the matter with the attention it deserved and
proceeded on the basis that this was a case
where the respondent Nos. 2-15 had been
denied their right to be categorised as
permanent workmen on account of the
nature of the work performed by them
throughout the year. The High Court has, in
fact, merely relied on the findings of the
Labour
Court
without
independently
applying its mind to the said aspect of the
matter.

24.
We,
therefore,
accept
the
submissions advanced by Mr. Upadhyay
and allow the appeal. The Award of the
Labour Court and the Judgment of the High
Court impugned in this appeal, are set
aside."

5. Following the above authorities,
this Court in Civil Misc. Writ Petition No.
Case 17313 of 1997 (U.P.S.R.T.C. &
Another Vs, Brij Nandan Lal & Others)
decided on 2.5.2012 set aside the award of
Labour Court observing as under:

"The mere fact that a person is
discharging duties of a particular nature
would not entitle him to claim a right to the
post or else other benefits of that post unless
he is appointed on the post in accordance
with the procedure prescribed in law."

6. The reliance placed by learned
counsel for petitioner on Lallan Prasad
Patel (supra) is misplaced since the facts of
that case show that the same has no
application to the case in hand. There the
incumbent was actually appointed, though
on ad hoc basis as officiating Principal in
the upgraded Junior High School. The
factum of appointment having not been
disputed, the Court held that a person
officiating on the post of Principal is
entitled to receive salary of Principal.
However, when a person is not appointed
but simply permitted to discharge duties on
a higher post, salary is not payable.

7.

In
Somewhat
similar
circumstances, a Division Bench of this
Court (in which I was also a Member) in
Daljeet Singh Vs. State of U.P. & others
2007 (4) ESC 2261 (Alld) (DB), following
the various authorities of Apex Court on the
subject as well as a Division Bench
judgment of this Court (in which I was also
a Member) in Smt. Vijay Rani Vs.
Regional Inspectress of Girls School 2007
(2) ESC 987 observed as under:

"There is another aspect of the matter,
We do not find from the record that the
management passed any order at any point
of time appointing petitioner as officiating
or ad hoc principal of the College. The
petitioner has placed on record only a
document showing that he took over charge
of the office of Principal on 20.11.2002 and
the letter dated 2.12.2002 issued by the
University approving his working as
Principal of the College. Therefore, at the
best, the petitioner was allowed to
discharge duties on the post of Principal
whereafter he took over charge on
20.11.2002. Appointment to a post on adhoc or officiating basis is different than
mere discharge of duties of a higher post. In
other words, the petitioner was only given
current duty charge in addition to the
substantive post he held. In our view, this
2 All] Kharanan V. Presiding Officer, Labour Court, Varanasi and others
775
arrangement did not result in promotion to
the post of which the current duty charge
was handed over to the petitioner unless an
order of promotion is issued by the
management in favour of the petitioner.

In State of Haryana Vs. S.M. Sharma
AIR 1993 SC 2273, the Chief Administrator
of the Board entrusted Sri S.M. Sharma,
with the current duty charge of the post of
Executive
Engineer,
which
was
subsequently withdrawn as a result of his
transfer to other post. He challenged the
said order stating that it amounts to
reversion. The Apex Court held that Sri
Sharma was only having current duty
charge of the post of Executive Engineer
and was never promoted or appointed to the
aforesaid post. Therefore, on transfer to
some other post, it did not result in
reversion from the post of Executive
Engineer.

A somewhat similar situation occurred
in Ramakant Shripad Sinai Advalpalkar
Vs. Union of India and others, 1991
Supple (2) SCC 733 and the Apex Court
observed as under:-

"The distinction between a situation
where a government servant is promoted to
a higher post and one where he is merely
asked to discharge the duties of the higher
post is too clear to require any reiteration.
Asking an officer who substantively holds a
lower post merely to discharge the duties of
a higher post cannot be treated as a
promotion."

It was further held that such situations
are contemplated where exigencies of
public
service
necessitate
such
arrangements and even consideration of
seniority do not enter into it sometimes.
However the person continues to hold
substantive lower post and only discharges
duties of the higher post essentially as a
stop-gap arrangement. A further contention
was raised that such an arrangement if
continued for a very long period it would
give some kind of right to continue on the
post but negativing such contention, it was
held that an in-charge arrangement is
neither recognition nor is necessarily based
on seniority and therefore, no rights,
equities and expectations can be built upon
it.

A similar issue was considered by a
Division Bench of this court also in Smt.
Vijay Rani Vs. Regional Inspectress of
Girls Schools Region-I, Meerut and
others, 2007 (2) ESC 987 and this Court
held as under:-

"In this view of the matter, the
Petitioner-Appellant has miserably failed to
show that the management ever appointed
her as officiating Principal of the College
and, therefore, we hold that she was only
allowed to discharge duties of the office of
officiating
Principal,
but
was
never
appointed/promoted by the management as
officiating Principal of the College. The
question no. 1 is answered and decided
accordingly."

8. In the case in hand, Labour Court
has clearly observed that since at no point of
time,
petitioner
was
appointed
as
Stenographer by the competent authority
following procedure prescribed in law, he
was not entitled for post, pay scale and
other benefits on the post of Stenographer.
It is not the case of petitioner that he was
appointed by competent authority in
accordance with law on the post of
Stenographer at any point of time. He was
substantively appointed as Fitter and was
given dues payable on the said post. In the
776 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
circumstances, I do not find any error
apparent on the face of record in the
impugned award warranting interference.

9. Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2012

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.

Civil Misc. Writ Petition No. 48448 of 2008

Narendra Kumar Singh
 ...Petitioner
Versus
D.I.O.S., Allahabad & others ...Respondents

Counsel for the Petitioner:
Sri Praful Bahadur
Sri Rakesh Bahadur

Counsel for the Respondents:
C.S.C
Sri Waqar Haider Zaidi
Sri Anoop Mishra
Sri Salil Srivastava

Constitution
of
India,
Article
226payment
of
salary-petitioner
when
engaged as Assistant Teacher (Sanskrit)-
was merely Intermediate-the institution
junior high school-upgraded in 1978brought under payment of salary on
ground
not
possessing
minimum
qualification-defence
of
G.O.
dated
10.03.1997 as appointment made prior
1978 not required training-admittedly
petitioner now possessing degree of M.A.
With B.Ed.-after deceleration of dying
cadre of C.T. Grade-became L.T. Grade
teacher-entitled for salary.

Held: Para 13

Thus in view of the settled legal position
that where such appointments between
1971 to 1978 could not be said to be
erroneous
only
because
the
only
qualification possessed by the Assistant
Teacher was Intermediate and approval
had not been obtained from the District
Basic Education Officer.
Case law discussed:
1999 (3) UPLBEC 2379

(Delivered by Hon'ble B. Amit Sthalekar, J.)

1. By means of this writ petition the
petitioner is challenging the order dated
12.6.2008 by which matter relating to the
appointment of the petitioner as Assistant
Teacher (Sanskrit) in the institution,
namely, Adarsh Uchhatar Madhyamik
Vidyalaya,
Malihan,
Phoolpur,
Allahabad and the approval granted to
his appointment has been rejected by the
Director Education( Secondary) U.P..

2. The case of the petitioner is that
he was appointed in the C.T.grade for
teaching Junior High School classes in
the
Adarsh
Uchhatar
Madhyamik
Vidyalaya,
Malihan,
Phoolpur,
Allahabad on 1.7.1976. The petitioner
was an Intermediate pass on the date of
appointment. The institution was granted
permanent recognition as Junior High
School with effect from 1.7.1978 vide
letter dated 11.8.1978 of the Deputy
Director
of
Education,
Region-IV,
Allahabad. Thereafter, it was upgraded to
High School level in terms of Section 7A
of the U.P. Intermediate Education Act,
1921 and granted permanent recognition
by
Additional
Secretary,
Secondary
Education Board by his letter dated
24.12.1980. The petitioner has also
passed M.A. B.Ed and claims to be
entitled to the L.T.grade in terms of the
G.O. dated 3.9.1986 upon the declaration
of the C.T. Grade to be dying cadre.

3. When he was not paid salary, the
petitioner along with two others filed