# Radhey Shyam Nishad v. State of U.P. and others

- **Citation:** (2008) 3 ILRA 811
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-08-20
- **Case number:** Civil Misc. Writ Petition No. 18399 of 2006
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/radhey-shyam-nishad-v-state-of-u-p-and-others-41228
- **Pages:** 6

## Headnote

Sri P.K. Pandey
Suman Sirohi
Sri Ghanshyam Dwivedi
Sri B.P. Singh
Sri I.C. Pandey
S.C.

Constitution
of
India
Art.
226Regularisation-petitioner
working
as
Motor Vote Driver for the last 37 yearsfour junior to petitioner-regularisedclaim of petitioner rejected on the
ground of no vacancy-specific contention
of 4 existing vacancy of operator- not
denied, nor the regularized of junior to
the petitioner denied-even on direction
of court instead of regularizing in pay
scale of 4000-6000/- regularized on in
the
pay
of
Rs.2610-3540/-
only
objection that petitioner is not qualifiedNo steps taken to dispensing the services
nor the authorities taken any steps for
creation of the post of M.V. Driver-heldentitled to be regularized w.e.f. one day
prior to the regularization of junior on
the
post
of
operator-grad-I-order
rejecting
representation
as
well
as
regularization
on
lower
pay
scale
quashed.

Held: Para 11

As I have held that for 37 long years the
petitioner has been functioning on a
non-existing post, and the Department
made no effort to dispense his services
or to create a post for his absorption.
Further,
admittedly,
juniors
to
the
petitioner have been regularised and the
petitioner
has
been
discriminated.
Consequently, the policy adopted by the
respondents is clearly arbitrary and
violative of Articles 14 and 16 of the
Constitution.
In
matters
of
public
employment, the respondents cannot
choose a policy of 'pick and choose' by
absorbing juniors to the detriment of the
petitioner. This Court further finds that
the order of regularisation has been
made on a post lower than what the
petitioner has claimed. Further, no effort
has been made to give the petitioner the
pay protection, which he is entitled to,
under law, since he was receiving a
higher pay-scale.
Case law discussed:
JT (2006) 4 SC 420, 2008 All C J 493

## Text

3 All] Radhey Shyam Nishad V. State of U.P. and others
811
10. However, the respondents are at
liberty to recover the amount, which they
are required to pay to the petitioner under
this order, from the official concerned,
who is found to be responsible for such
negligence and delay, after making
appropriate enquiry in the matter in
accordance with law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.08.2008

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 18399 of 2006

Radhey Shyam Nishad
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri R.P. Ram

Counsel for the Respondents:
Sri P.K. Pandey
Suman Sirohi
Sri Ghanshyam Dwivedi
Sri B.P. Singh
Sri I.C. Pandey
S.C.

Constitution
of
India
Art.
226Regularisation-petitioner
working
as
Motor Vote Driver for the last 37 yearsfour junior to petitioner-regularisedclaim of petitioner rejected on the
ground of no vacancy-specific contention
of 4 existing vacancy of operator- not
denied, nor the regularized of junior to
the petitioner denied-even on direction
of court instead of regularizing in pay
scale of 4000-6000/- regularized on in
the
pay
of
Rs.2610-3540/-
only
objection that petitioner is not qualifiedNo steps taken to dispensing the services
nor the authorities taken any steps for
creation of the post of M.V. Driver-heldentitled to be regularized w.e.f. one day
prior to the regularization of junior on
the
post
of
operator-grad-I-order
rejecting
representation
as
well
as
regularization
on
lower
pay
scale
quashed.

Held: Para 11

As I have held that for 37 long years the
petitioner has been functioning on a
non-existing post, and the Department
made no effort to dispense his services
or to create a post for his absorption.
Further,
admittedly,
juniors
to
the
petitioner have been regularised and the
petitioner
has
been
discriminated.
Consequently, the policy adopted by the
respondents is clearly arbitrary and
violative of Articles 14 and 16 of the
Constitution.
In
matters
of
public
employment, the respondents cannot
choose a policy of 'pick and choose' by
absorbing juniors to the detriment of the
petitioner. This Court further finds that
the order of regularisation has been
made on a post lower than what the
petitioner has claimed. Further, no effort
has been made to give the petitioner the
pay protection, which he is entitled to,
under law, since he was receiving a
higher pay-scale.
Case law discussed:
JT (2006) 4 SC 420, 2008 All C J 493

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

1. Heard Shri R.P. Ram, the learned
counsel for the petitioner and the learned
Standing Counsel appearing for the
respondents.

2. The petitioner has filed the
present writ petition for the quashing of
the orders dated 19.10.1996, 16.12.2005,
26.08.2006 and 29.08.2006, and further
has prayed for a writ of mandamus
commanding the respondents to regularise
the petitioner on the post of Operator Gr.
I. The facts leading to the filing of the
812 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
writ petition is, that the petitioner was
appointed on work charge as a Motor
Boat Driver/Operator in the Irrigation
Department in the year 1971, and since
then, is working on that post. The
petitioner alleged that the services of 19
other
employees
in
the
Irrigation
Department, who were junior to the
petitioner, have been regularised, and that
the petitioner has been discriminated and,
has not been regularised in the service of
the Department, for reasons best known to
the respondents. The details of the
persons, who were junior to the petitioner,
and who have been regularised, has been
mentioned in paragraph 3 of the writ
petition. The petitioner further contended
that he is working continuously without
any break in service, and that, he made a
representation in the year 1995 for the
regularisation of his services, which
remained pending, and consequently, Writ
Petition No. 41 of 1996 was filed, which
was disposed of by an order dated 8th of
January,
1996,
directing
the
Superintending Engineer to decide the
representation. Even this direction was
not complied with, and the petitioner had
to file a contempt application, as a result
of which, the Executive Engineer issued
an order dated 19th of October, 1996,
appointing the petitioner as a temporary
employee on the post of Mate in the payscale
of
Rs.775-1025/-.
Since
the
petitioner was working as an Operator and
was getting a higher pay-scale, he refused,
and made a representation dated 30th
January, 1997, praying that he should be
given the pay-scale of an Operator in the
pay-scale
of
Rs.1200-2040/-.
This
representation remained pending and the
petitioner again approached the writ Court
by filing Writ Petition No. 31403 of 1997.
The writ Court, by an order dated 27th
August, 2004, disposed of the writ
petition directing the authorities to decide
the representation. Even this direction of
the Court was not complied with, and
accordingly, the petitioner filed another
contempt application, and on the fear of
the
contempt
proceedings,
the
respondents, by an order dated 16th
December,
2005,
rejected
the
representation of the petitioner, refusing
to regularise his services, on the short
ground that there was no sanctioned post
of an Operator. The petitioner, being
aggrieved by the said order, has filed the
present writ petition.

3. The petitioner contended that four
posts of Operator was existing in the
office of the Superintending Engineer in
Obra in district Sonbhadra, and that,
various Government Orders had been
issued from time to time, with regard to
the
regularisation
of
work
charge
employees in the Irrigation Department,
which has not been adhered to by the
authorities.

4. The respondents, in their counter
affidavit, have admitted in paragraph 4
that the petitioner was appointed on the
post of Motor Boat Driver/Operator and
that his services could not be regularised
as
there
was
no
vacancy
in
the
Division/Circle
of
the
Irrigation
Department. The respondents further
admitted that the services of the petitioner
was regularised on the post of Mate,
which the petitioner did not accept, as he
was getting a higher salary, and that, the
post of Operator Gr. I was not available,
and therefore, the petitioner's services
could not be regularised. In paragraph 12
of the counter affidavit, the respondents
admitted that 4 posts of operator was
available in Obra in district Sonbhadra,
but it was not possible for the respondents
3 All] Radhey Shyam Nishad V. State of U.P. and others
813
to regularise the petitioner on that post,
and that, the same could only be done by
the Chief Engineer (Zonal) of Sonbhadra
Division.

5. Based on the aforesaid averments,
made in the counter affidavit, the Court
issued an order dated 26th April, 2006,
directing the Superintending Engineer to
send his comments to the Chief Engineer,
who, in turn, would issue the necessary
directions to the Chief Engineer (Zonal),
and who will decide the claim of the
petitioner. It transpires that, based on the
aforesaid
direction,
the
Executive
Engineer issued an order dated 26th
August, 1986, appointing the petitioner on
the post of Operator in the pay-scale of
Rs.2610-3540/-. It was contended that the
order was passed by the Executive
Engineer upon the directions of the Chief
Engineer (Zonal) and the Superintending
Engineer, and that, the petitioner was
regularised on the post, which was vacant
in Obra in district Sonbhadra. The
petitioner, being aggrieved by this order,
filed an amendment application, which
was allowed, and an additional prayer was
made for quashing of this order dated 26th
August, 2006 on the ground that the
petitioner was receiving a higher payscale and was entitled to be regularised as
an Operator Gr. I in the pay-scale of
Rs.4000-6000/-.

6. The Court has heard the parties at
some length and has also perused the
original record as well as the service book
of the petitioner, which was produced by
the respondents, as per the directions of
the Court. From the counter affidavit,
filed by the respondents, it is clear that the
petitioner was appointed in the year 1971
on
the
post
of
Motor
Boat
Driver/Operator. The said appointment
was made on a non-existing post. No
effort was made by the Department to
create a post of Operator, nor any effort
was made by the respondents to dispense
the services of the petitioner on account
of non-existence of a post. The service
record, on the other hand, discloses that
from time to time the petitioner was given
an increment, and as and when the payscale of Operator was revised, the
petitioner was given the said pay-scale.
Consequently, for all practical purposes,
the
respondents
were
treating
the
petitioner as a confirmed employee. The
service book clearly indicates that all the
benefits of a confirmed employee was
being given to the petitioner.

7. However, when the time came to
regularise the services of the petitioner, a
strange stand was adopted by the
respondents, namely, that the services of
the petitioner could not be regularised
because there is no vacant post. If there
was no vacant post, the respondents
should have dispensed with his services,
but, they chose not to do so, because the
respondents required the services of the
petitioner to operate the motor boat on the
rivers of Allahabad to take the officials up
and down the river. The respondents, in
their counter affidavit, have admitted that
juniors to the petitioner have been
regularised, and that the services of the
petitioner could not be regularised as
there was no vacant post.

8. For the sake of repetition, the
petitioner was appointed in 1971, and till
date, the stand taken by the respondents
after 38 years is, that there is no vacant
post of Operator in the Circle/Division at
Allahabad, and eventually, when the
Court directed by an order dated 26th
August, 2006, the respondents regularised
814 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
the services of the petitioner on the post
of Operator on a vacant post existing in
Sonbhadra, and that too, on a lower payscale.
The
respondents
in
their
supplementary counter affidavit dated 29th
March,
2007,
admitted
that
the
regularisation of the petitioner on the post
of Operator is on a lower pay-scale than
what the petitioner is drawing as on date,
and that, the question of protection of his
last pay-scale can only be considered by
the Department only when the petitioner
joins the post.

9. In the light of the aforesaid, the
admitted position is, that the petitioner
was appointed on the post of Motor Boat
Driver/Operator in 1971 on a non-existing
post, and that, no sanctioned post of
Motor Boat Driver/Operator is existing as
on date in the Circle/Division of the
Irrigation Department. These admitted
facts indicates the unfair labour practice
adopted by the Irrigation Department. The
Irrigation Department, which is part and
parcel of the State machinery, is required
to act as a model employer, and is not
required to adopt an unfair labour
practice. No effort has been made by the
Department to create a post or ask the
Government for sanctioning of a post.
Further, juniors to the petitioner have
been regularised. The petitioner has
clearly been discriminated. The Court
further finds that different stand has been
taken by the respondents at different
moment of time. Initially, the respondents
took a stand that the services of the
petitioner
could
not
be
regularised
because there was no vacancy existing on
the post of Operator Gr. I in the
Circle/Division, and now, after the
respondents have regularised the services
of the petitioner on the post of Operator, a
stand has been taken that the said
regularisation is on account of the
educational
qualification
which
the
petitioner possesses, and, on that basis,
the petitioner could only be regularised on
the post of Operator and not on the post of
Operator Gr.I. The respondents have not
considered the length of service, which
the petitioner has put in on the post in
which he was working. Thirty seven long
years gives a sufficient experience to a
person for being considered on a post,
irrespective of the fact, whether he has the
requisite qualification or not. Further,
requisite qualification is a necessary
ingredient when an appointment is made
through direct recruitment, but is not the
only essential factor when regularisation
is to be considered. Length of service
experience
becomes
an
essential
ingredient also for consideration for
regularisation
of
the
service.
The
respondents are totally adopting an unfair
labour practice. If the petitioner was not
qualified, then how has the respondents
allowed the petitioner to function as a
Motor Boat Driver/Operator for 37 long
years,
and
when
the
question
of
regularisation
comes
into
play,
the
respondents have the audacity and the
cheek to suggest that the petitioner did not
have the requisite education qualification,
and therefore, could not be regularised on
the post of Operator Gr. I.

10. In my opinion, the stand taken
by the respondents is a clear indication of
the unfair labour practice adopted by the
respondents. A feeble attempt was also
made by the respondents to take refuge to
a decision in Secretary, State of
Karnataka & Ors. Vs. Uma Devi &
Ors., JT (2006) 4 SC 420, wherein, the
Supreme Court has held that a back door
entry cannot be permitted for such
employees, who have been appointed
3 All] Radhey Shyam Nishad V. State of U.P. and others
815
illegally. Further, reliance was made on
another Division Bench of this Court in
Amit Kumar Sharma & Ors. Vs. State
of U.P. & Ors., 2008 All C J 493,
wherein, it was held that a daily wager
cannot claim that he was holding a post
and cannot claim parity with regular
employees of the establishment. In my
opinion, the judgment cited by the
respondents are clearly distinguishable.
There is nothing to indicate that the
appointment of the petitioner was ex facie
illegal or de hors the rules. The only error
was that the petitioner was appointed on a
non-existing post. But then, the petitioner
was not at fault and the respondents are
totally responsible for allowing the
petitioner to continue in service for 37
years, on a non-existing post. The
illegalities committed by the respondents
would have been cured by the creation of
a post.

11. As I have held that for 37 long
years the petitioner has been functioning
on
a
non-existing
post,
and
the
Department made no effort to dispense
his services or to create a post for his
absorption. Further, admittedly, juniors
to the petitioner have been regularised
and
the
petitioner
has
been
discriminated. Consequently, the policy
adopted by the respondents is clearly
arbitrary and violative of Articles 14
and 16 of the Constitution. In matters of
public employment, the respondents
cannot choose a policy of 'pick and
choose' by absorbing juniors to the
detriment of the petitioner. This Court
further
finds
that
the
order
of
regularisation has been made on a post
lower than what the petitioner has
claimed. Further, no effort has been
made to give the petitioner the pay
protection, which he is entitled to, under
law, since he was receiving a higher
pay-scale.

12. In view of the aforesaid, the
writ petition is allowed. The impugned
orders dated 19.10.1996, appointing the
petitioner on the post of Mate, and the
order
dated
26th
August,
2006,
appointing the petitioner on the post of
Operator, are quashed. The order dated
16.12.2005, rejecting the representation
of the petitioner, is also quashed. A writ
of mandamus is issued, commanding the
respondents to regularise the services of
the petitioner on the post of Operator
Gr. I w.e.f. one day before the date
juniors to the petitioner were regularised
in the services of the Department.
Consequential benefits that will flow
from the regularisation will follow and
the petitioner's pay would be recalculated accordingly. In the event the
pay of the petitioner works out to be
less than what he was being paid at the
relevant moment of time, the difference
will
not
be
recovered
from
the
petitioner, and that, the petitioner would
be granted the pay protection. In the
event, the petitioner is entitled for a
higher pay after recalculation, the
arrears, if any, would be paid to the
petitioner within six weeks from the
date of the production of a certified
copy of this order.
---------
816 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.08.2008

BEFORE
THE HON'BLE VIJAY KUMAR VERMA, J.

Criminal Misc. Application No. 1813 of
2008

Ram Prasad and others
...Applicants
Versus
1.State of U.P.
2.Jeetan

 ...Opposite parties

Counsel for the Applicants:
Sri M.P. Tiwari

Counsel for the Opposite Parties:
A.G.A.

Code
of
Criminal
Procedure-482Quashing of criminal proceeding-offence
under Section 323, 504 and 506 I.P.C.-
dispute personal nature-on reference of
High
Court-mediation
center
settled
their
differences
on
the
basis
of
compromise-in continuing proceedingNo useful purpose shall be-held-to do
complete
justice-proceeding
of
complaint case Quashed.

Held: Para 6

Having regard to the observations made
in the rulings mentioned herein-above, I
am of the opinion that it would be an
abuse of the process of the Court, if the
criminal
proceedings
against
the
applicants is allowed to continue, as the
dispute was of personal nature, which
has been settled by way of compromise.
Therefore, to do the complete justice,
the proceedings of Complaint Case No.
1547 of 2007 may be quashed by this
Court in its inherent jurisdiction under
section 482 Cr.P.C.
Case law discussed:
(2003) 4 Supreme Court Cases 675, [2006(30)
JIC 135 (Alld)], 2005 (51) ACC 21, 2007 (59)
ACC 123, 2007 (59) ACC 148, 2007 (57) ACC
981,

(Delivered by Hon'ble Vijay Kumar Verma, J.)

By means of this application under
section 482 of the code of Criminal
Procedure (in short the 'Cr.P.C.'), the
applicants Ram Prasad, Shri Dev, Jai
Dev and Atma Darshi have invoked the
inherent jurisdiction of this Court,
praying for quashing of the proceedings
of Case No. 1547 of 2007 (State vs.
Ram Prasad & others), pending in the
court of Judicial Magistrate Gorakhpur.

2. Shorn of unnecessary details,
the facts leading to the filing of the
application under section 482 Cr.P.C.,
in brief, are that opposite party No. 2
Jeetan had moved an application under
section 156 (3) Cr.P.C. in the Court of
Judicial Magistrate-II Gorakhpur. On
the basis of the order passed on that
application, an FIR was lodged on
13.06.2007 at P.S. Jhagaha, where a
case under sections 323, 504, 506, 394
IPC and 3 (i) (X) SC/ST Act was
registered at Crime No. 376 of 2007 (C)
against the applicants Ram Prasad, Shri
Dev, Jai Dev and Atma Darshi. After
investigation charge-sheet under section
323, 504, 506 IPC and 3 (i) (X) SC/ST
Act has been submitted against the
applicants, on the basis of which
Criminal Case No. 1547 of 2007 has
been registered. Now the applicantsaccused have come to this court for
quashing the proceedings of aforesaid
case.

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