# Prem Prasad Gupta v. The State of U.P. and others

- **Citation:** (2008) 3 ILRA 712
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-07-22
- **Case number:** Civil Misc. Writ Petition No. 37901of 2003
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-prasad-gupta-v-the-state-of-u-p-and-others-41147
- **Pages:** 4

## Headnote

Constitution
of
India
Article
226Regularisation-petitioner working on the
post of driver mechanic since 1980junior to petitioner regularised-when
claimed for regularisation and regular
salary-the principal of institution put
condition to withdraw the petition and
forgo the salary of previous time-only
then be appointed on class 4th post-held
working of long period of 20 years
cannot be ignored-authorities to create
post and regularise the petitioner within
three months-keeping it open to take
action against erring Officer.

Held: Para 6 & 7

Admittedly, the petitioner has been
working since 1980 and there is a
requirement of work which has not been
denied
by
the
respondents.
Consequently, it is not open to the
respondents to allege that the petitioner
is not entitled for the regular salary or
for the minimum pay-scale on the post of
Driver-cum-Mechanic on the ground that
there is no sanctioned post. The fault is
not of the petitioner and lies solely with
the Principal of the College and its
institution. The State Government in its
counter affidavit has categorically stated
that the appointment was made by the
institution
without
there
being
a
sanctioned post.

Be that as it may. The petitioner having
worked for more than 20 years since
1980 continuously, cannot be deprived
of his employment on the sole ground
that there does not exist a sanctioned
post.
The
respondents
have
never
alleged that the work of a Driver-cumMechanic
is
not
required
in
the
institution. If there is requirement of
work, the respondents are required to
create a post of a Driver-cum-Mechanic.
Simultaneously,
the
service
of
the
petitioner cannot be dispensed with at
this stage and he is liable to be
regularised and be paid the regular
salary
on
the
post
of
Driver-cumMechanic.

## Text

712 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
was passed by the court below/reference
court rejecting the delay condonation
application of petitioner moved along
with substitution application under Order
XXII Rule 3 for bringing the legal
representative and heir of the claimant
Sabbir Hasan on record on the ground that
the same was not maintainable before the
court, in my opinion, view taken by the
court below is contrary to the view taken
by me, therefore, cannot be sustained. The
rejection of delay condonation application
of the petitioner moved along with
substitution application on merits too
appears to be erroneous. I am of the
considered opinion that liberal view ought
to have been taken by the court below
while considering the cause shown by the
petitioner
in
moving
such
belated
application. The specific case taken by the
petitioner was that he was residing in
Bombay in connection of his Hotel
business and rarely visits his home town
at Tilhar in district Shahjahanpur and he
was not aware of the proceeding pending
in court below, therefore, in absence of
rebuttal of his statement made in affidavit
on oath and in absence of contrary
material
brought
on
record,
the
correctness of his statement could not be
doubted by the court below. In my
opinion, the view taken contrary to it
cannot be sustained. In given facts and
circumstances of the case, the cause
shown in moving the belated substitution
application by the petitioner appears to be
sufficient and, therefore, the delay caused
in moving such application ought to have
been condoned. Accordingly, the delay
caused in moving substitution application
by the petitioner is hereby condoned. The
impugned order dated 8.11.2002 passed
by the court below is hereby quashed. The
court below is directed to decide the
substitution application moved by the
petitioner on merit by restoring the
aforesaid reference proceeding on file.

19.

Before parting with the
judgement, it is necessary to point out that
vide impugned order dated 8.11.2002
passed by the reference court, since the
delay condonation application moved
alongwith the substitution application of
the petitioner has been rejected, therefore,
it shall be tentamounted to be an order
under Rule 9 of Order XXII C.P.C.
refusing to set aside the abatement or
dismissal of a suit which is appealable
under Order 43 Rule 1(k) of the Code.
But since I have heard and decided the
case on merit as indicated herein before,
as the writ petition is pending since the
year 2003, therefore, I do not think it
proper either to reject the petition on the
ground of alternative remedy or to direct
the office to register and convert the same
as F.A.F.O. at this stage. However, the
same should be treated to be decided as
F.A.F.O..

20. In view of the aforesaid
observation and direction, writ petition
succeeds and is allowed to the extent
indicated herein before.
-----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.07.2008

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 37901of 2003

Prem Prasad Gupta

 ...Petitioner
Versus
The State of U.P. & others Respondents

Counsel for the Petitioner:
Sri Arvind Kumar Srivastava
3 All] Prem Prasad Gupta V. The State of U.P. and others
713
Counsel for the Respondents:
Sri Satish Chandra Rai
Sri M.H. Chauhan
S.C.

Constitution
of
India
Article
226Regularisation-petitioner working on the
post of driver mechanic since 1980junior to petitioner regularised-when
claimed for regularisation and regular
salary-the principal of institution put
condition to withdraw the petition and
forgo the salary of previous time-only
then be appointed on class 4th post-held
working of long period of 20 years
cannot be ignored-authorities to create
post and regularise the petitioner within
three months-keeping it open to take
action against erring Officer.

Held: Para 6 & 7

Admittedly, the petitioner has been
working since 1980 and there is a
requirement of work which has not been
denied
by
the
respondents.
Consequently, it is not open to the
respondents to allege that the petitioner
is not entitled for the regular salary or
for the minimum pay-scale on the post of
Driver-cum-Mechanic on the ground that
there is no sanctioned post. The fault is
not of the petitioner and lies solely with
the Principal of the College and its
institution. The State Government in its
counter affidavit has categorically stated
that the appointment was made by the
institution
without
there
being
a
sanctioned post.

Be that as it may. The petitioner having
worked for more than 20 years since
1980 continuously, cannot be deprived
of his employment on the sole ground
that there does not exist a sanctioned
post.
The
respondents
have
never
alleged that the work of a Driver-cumMechanic
is
not
required
in
the
institution. If there is requirement of
work, the respondents are required to
create a post of a Driver-cum-Mechanic.
Simultaneously,
the
service
of
the
petitioner cannot be dispensed with at
this stage and he is liable to be
regularised and be paid the regular
salary
on
the
post
of
Driver-cumMechanic.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Shri Arvind Kumar
Srivastava, the learned counsel for the
petitioner and Shri M.H. Chauhan, the
learned counsel, holding the brief of Shri
Satish Chandra Rai, the learned counsel
for respondent nos. 3, 4 and 5 and the
learned
Standing
Counsel
for
the
remaining respondents.

2. The petitioner was appointed as a
Driver-cum-Mechanic on 1st of August,
1980, as is clear from paragraph 3 of the
writ petition and Annexure '1' to the writ
petition. The petitioner contends that he is
working on that post, since then, without
any break in service. The petitioner
alleged that from 7th March, 1998
onwards, the respondents stopped his
salary and that juniors to the petitioner
were also regularised in service and that
the same benefit was not extended to the
petitioner. Accordingly, the petitioner
filed a writ petition, which was disposed
of with a direction to the authorities to
consider and decide his representation.
Based on the said order, the authorities
rejected the claim of the petitioner for
regularisation of his service and payment
of regular salary on the post of Drivercum-Mechanic, by an order dated 28th
September, 1999, on the ground that there
was no sanctioned post of Driver-cumMechanic. The petitioner, being aggrieved
by the said order, filed Writ Petition No.
29999 of 2000. During the pendency of
the said writ petition, the respondents
passed another order dated 4th March,
2002 stating therein that the petitioner
714 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
would be absorbed as a Class IV
employee, provided he gives up his claim
on the post of Driver-cum-Mechanic and
withdraws his earlier writ petition. The
petitioner, being aggrieved by the said
order, filed the present Writ Petition No.
37901 of 2003.

3. The learned counsel for the
respondents submitted that there is no
sanctioned post of Driver-cum-Mechanic,
and therefore, his services cannot be
regularised on a non-existing post, nor
can he be paid the salary of a Driver-cumMechanic. The learned counsel submitted
that the management had rightly issued
the order of 4th March, 2002 offering the
petitioner for the regularisation of his
service on a class IV post. The
respondents in the counter affidavit have
admitted that the petitioner was appointed
as Driver-cum-Mechanic even though
there was no sanctioned post, and
therefore, the appointment letter should be
treated to be a void appointment letter.
The State Government in their counter
affidavit have admitted that the petitioner
was appointed as a Driver-cum-Mechanic
on a non-existing post.

4.

Having
considered
the
submissions of the learned counsel for the
parties, this Court is appalled by the
issuance of the letter dated 4th March,
2002, issued by the Principal of the Town
Polytechnic, Ballia (respondent no. 5).
The
audacity
of
the
authority
in
threatening the petitioner to withdraw his
writ petition and withdraw his claim for
the post of Driver-cum-Mechanic, and
only then he would be absorbed on a class
IV post, is writ large and speaks volume
of the arbitrariness and feudal approach of
the authorities in matters of public
employment.
5. Admittedly, the petitioner was
appointed in the year 1980 as a Drivercum-Mechanic and his services were
utilised
by
the
respondent
no.
5
continuously for 20 long years, and
during this period, the respondents never
batted their eyelids even for a single
second in permitting the petitioner to
work on a non-existing post, and now
when
the
petitioner
asked
for
regularisation of his services and payment
of regular salary, the authorities stopped
his salary and further promised to appoint
him on a class IV post, provided the
petitioner withdraws his claim on the post
of driver. This attitude of the respondent
is nothing but an unfair labour practice,
which is violative of Articles 14 and 16 of
the Constitution of India.

6. Admittedly, the petitioner has
been working since 1980 and there is a
requirement of work which has not been
denied by the respondents. Consequently,
it is not open to the respondents to allege
that the petitioner is not entitled for the
regular salary or for the minimum payscale on the post of Driver-cum-Mechanic
on the ground that there is no sanctioned
post. The fault is not of the petitioner and
lies solely with the Principal of the
College and its institution. The State
Government in its counter affidavit has
categorically stated that the appointment
was made by the institution without there
being a sanctioned post.

7. Be that as it may. The petitioner
having worked for more than 20 years
since 1980 continuously cannot be
deprived of his employment on the sole
ground that there does not exist a
sanctioned post. The respondents have
never alleged that the work of a Drivercum-Mechanic is not required in the
3 All] Phool Chand Tewari V. A.D.J., Jaunpur and others
715
institution. If there is requirement of
work, the respondents are required to
create a post of a Driver-cum-Mechanic.
Simultaneously,
the
service
of
the
petitioner cannot be dispensed with at this
stage and he is liable to be regularised and
be paid the regular salary on the post of
Driver-cum-Mechanic.

8. In view of the aforesaid, the Writ
Petition No. 29999 of 2000 is allowed.
The order dated 28th November, 1999,
passed by the respondent no. 2 is quashed.
The respondents are directed to pay the
salary to the petitioner since March, 1998
on the post of Driver-cum-Mechanic.

9. Consequently, the Writ Petition
No. 37901 of 2003 is also allowed. The
impugned order dated 4th March, 2002,
issued by the respondent no. 5 is quashed.

10. A writ of mandamus is issued to
the respondents to create a post of Drivercum-Mechanic within three months from
the date of the production of a certified
copy of this order and regularise the
services of the petitioner on that post. In
the mean while, the petitioner would be
paid the regular salary payable on the post
of Driver-cum-Mechanic. It would be
open to the State Government to initiate
an
enquiry
against
the
erring
officer/official and recover the amount
vis-a-vis
the
wrongful
appointment
initially made in favour of the petitioner
on the post of Driver-cum-Mechanic.

Petition allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.07.2008

BEFORE
THE HON'BLE BHARTI SAPRU, J.

Civil Misc. Writ Petition No. 3374 of 1988

Phool Chand Tewari

...Petitioner
Versus
A.D.J., Jaunpur & others Respondents

Counsel for the Petitioner:
Sri D.S.M. Tripathi

Counsel for the Respondents:
Sri H.S.N. Tripathi
S.C.

Code of Civil Procedure Section 151Inherent Power of the Court-can be
exercised for doing substantial justicewhere no appeal or revision lie-it cannot
be invoked simultaneously-appeal under
statutory provision.

Held: Para 27

Taking into consideration the entire facts
and circumstances of the case, I am of
the opinion that the inherent powers as
conferred under section 151 C.P.C. may
only be invoked in certain situations but
not in a case where the party has a right
of filing an appeal or of revision under
the Code itself.
Case law discussed:
AIR 1973 Madras 135,.AIR 1987 Karnataka
264, AIR 1966 SC 1899, 2002 ACJ 1092 SC,
1999 ACJ 1462 SC, 2000 ACJ 51, 1998 RD
607.

(Delivered by Hon'ble Bharati Sapru, J.)

1. Heard Sri. D.S.M. Tripathi for the
petitioner and Sri H.S.N. Tripathi for the
respondents.