# Radhey Shyam Tiwari v. Registrar General High Court and others

- **Citation:** (2010) 1 ILRA 146
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-02-26
- **Case number:** Civil Misc. Writ Petition No.10196 of 2010
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/radhey-shyam-tiwari-v-registrar-general-high-court-and-others-41517
- **Pages:** 10

## Headnote

Constitution of India Art- 14, 16-read
with Allahabad High Court officers and
Staff(conditions of Service and conduct)
Rules 1976- Rule 4-Appointment on class
4th employees on daily wages basiswithout advertisement without taking
recommendation
from
employment
exchange-tendency of appointment of
High Court administrations for the last
30 years-prove the proverb "it is darkest
beneath the candle"-court expressed its
great concern-direction not to engage
any
further
daily
wager
without
publication of vacancy in two news
papers having vide circulation- such
daily wages will not be paid salary
without leave of court no preference at
the time of regularisation available .

Held Para 27

In these set of circumstances and in
view of the admitted position that the
appointment of respondents no. 04 to 16
have been made without there being any
advertisement and without there being
any
process
of
selection
and
consideration amongst similarly situate
candidates like the petitioner, it is the
duty of the Court to ensure that injustice
is set at rest. The Court is of the opinion
that what has been practised for more
than three decades brought to a halt.
The infringement of Article 14 and 16 of
the Constitution of India cannot be
permitted
to
continue
any
further,
therefore,
appropriate
steps
are
to
continue
any
further,
therefore,
appropriate steps are required to be
taken. A stitch in time saves nine.
Illegality cannot be perpetuated nor it is
appropriate for the highest Court of the
State to act in a manner so as to shake
the confidence of the public at large.

Accordingly, the following directions are
being issued at this interim stage:

a. In view of the conceded position by
the High Court through its counsel as
noted above, no further appointment on
Class IV posts covered by Rule 4(a) of
the Rules, 1976 in the establishment of
the High Court both at Allahabad and at
Lucknow, shall be made in any capacity
except
after
due
publication
in
newspapers having wide and adequate
circulation.
1 All] Radhey Shyam Tiwari V. Registrar General High Court and others
147
b. It shall be open to the High Court to
take work or not to take work either
from the respondents no. 04 to 16 or any
such engagements that have been made
along with the said respondents or on
any date subsequent to the date of their
appointment in the establishment of the
High Court. However they shall not be
paid their salary without the leave of the
Court.

c. Respondents no. 04 to 16 and similarly
situate persons shall not be regularized
nor they shall be granted any preference
in terms of Rule 4 at the time of regular
appointment.

Issue notice to respondents no. 4 to 16.
The said respondents may be served
through the Registrar General of this
Court who may also inform similarly
situate persons, if any, of the pendency
of this writ petition, for putting in their
appearance. Steps may be taken within
ten days.
Case law discussed:
AIR 1997 SC, 2210, 2000 (4) ESC, 2682.

## Text

146 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
information,
deposit
the
aforementioned
amount
together
with
interest
thereon
and
also
complete the necessary formalities.
3.
On the deposit being made and the
formalities being completed by the
petitioner as mentioned in the
direction
no.
2
above,
the
respondents within three months
thereafter will give benefit of the
Government Order dated 25.8.1999
to the petitioner in terms of the
option exercised by the petitioner by
the Option Letter dated 19.7.2001.

23. On the facts and in the
circumstances of the case, the parties will
bear their own costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.02.2010

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No.10196 of 2010

Radhey Shyam Tiwari

...Petitioner
Versus
Registrar
General
High
Court
of
Judicature at Allahabad and others

 ...Respondents

Counsel for the Petitioner:
Mr. Yashwant Singh

Counsel for the Respondent:
Sri Amit Sthalekhar

Constitution of India Art- 14, 16-read
with Allahabad High Court officers and
Staff(conditions of Service and conduct)
Rules 1976- Rule 4-Appointment on class
4th employees on daily wages basiswithout advertisement without taking
recommendation
from
employment
exchange-tendency of appointment of
High Court administrations for the last
30 years-prove the proverb "it is darkest
beneath the candle"-court expressed its
great concern-direction not to engage
any
further
daily
wager
without
publication of vacancy in two news
papers having vide circulation- such
daily wages will not be paid salary
without leave of court no preference at
the time of regularisation available .

Held Para 27

In these set of circumstances and in
view of the admitted position that the
appointment of respondents no. 04 to 16
have been made without there being any
advertisement and without there being
any
process
of
selection
and
consideration amongst similarly situate
candidates like the petitioner, it is the
duty of the Court to ensure that injustice
is set at rest. The Court is of the opinion
that what has been practised for more
than three decades brought to a halt.
The infringement of Article 14 and 16 of
the Constitution of India cannot be
permitted
to
continue
any
further,
therefore,
appropriate
steps
are
to
continue
any
further,
therefore,
appropriate steps are required to be
taken. A stitch in time saves nine.
Illegality cannot be perpetuated nor it is
appropriate for the highest Court of the
State to act in a manner so as to shake
the confidence of the public at large.

Accordingly, the following directions are
being issued at this interim stage:

a. In view of the conceded position by
the High Court through its counsel as
noted above, no further appointment on
Class IV posts covered by Rule 4(a) of
the Rules, 1976 in the establishment of
the High Court both at Allahabad and at
Lucknow, shall be made in any capacity
except
after
due
publication
in
newspapers having wide and adequate
circulation.
1 All] Radhey Shyam Tiwari V. Registrar General High Court and others
147
b. It shall be open to the High Court to
take work or not to take work either
from the respondents no. 04 to 16 or any
such engagements that have been made
along with the said respondents or on
any date subsequent to the date of their
appointment in the establishment of the
High Court. However they shall not be
paid their salary without the leave of the
Court.

c. Respondents no. 04 to 16 and similarly
situate persons shall not be regularized
nor they shall be granted any preference
in terms of Rule 4 at the time of regular
appointment.

Issue notice to respondents no. 4 to 16.
The said respondents may be served
through the Registrar General of this
Court who may also inform similarly
situate persons, if any, of the pendency
of this writ petition, for putting in their
appearance. Steps may be taken within
ten days.
Case law discussed:
AIR 1997 SC, 2210, 2000 (4) ESC, 2682.

(Delivered by Hon'ble Arun Tandon, J.)

1. "The darkest place is under the
candle stick" or more appropriately "It is
darkest beneath the candle" is a proverb
that was taught at elementary school.
Nothing can be more apt to describe the
prevailing
situation
with
regard
to
appointment of Class IV employees in the
establishment of the High Court both at
Allahabad as well as Lucknow. The Court
has been informed on behalf of the
Registrar General of the High Court that
there
exists
no
record
of
any
advertisement having been published for
appointment on Class IV posts. At least
for the last 25 to 30 years, no
advertisement has been published and to
put it more exactly, the rule has been
observed in its fullest breach since the
promulgation of the Allahabad High
Court Officers and Staff (Conditions of
Service & Conduct) Rules, 1976 (herein
after referred to as Rules, 1976).

2. What logically follows is that for
last nearly three decades, appointments in
the establishment of High Court at
Allahabad as well as Lucknow against
Class IV posts have been made without
any
advertisement
and
without
an
invitation for participation to the public at
large in the process of selection.

3. From the record pertaining to the
appointment of respondents no. 04 to 16
to the present writ petition as produced
before this Court, it is clear that all 13
persons have been appointed on one and
the same date under orders of the Hon'ble
The Chief Justice. Out of these, 03 have
been
appointed
on
making
of
an
application duly recommended by Hon'ble
sitting Judges of this Court, On the left
hand side corner of the application of 04
candidates, names of officers/employees
already working in the High Court has
been hand written and endorsed. Two
appointees are from the State of Bihar and
one each from the districts of Azamgarh
and Jaunpur. One is the son of an
employee of this Court and another is a
resident of the Colony of the employees
of this Court. No selection of any kind has
been held. The basis for appointment is,
therefore, the recommendation of the
Hon'ble Judge or the affinity to the
officers/employees already working in the
establishment of the High Court. Such a
recommendation/closeness is available to
a selected few and not to a common
citizen.

4. To put it simply the manner of
selection and appointment is per se
148 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
violative of Article 14 and 16 of the
Constitution of India.

What is the mandate of Article 14
and 16 of the Constitution of India?

5. According to the Court, the
lifeline of a democratic country is
governance by the rule of law. The
Hon'ble Supreme Court of India in the
case of State of Bihar vs. Upendra
Narayan Singh & others reported in
2009 (5) SCC, 65 describes appointments
without advertisement and regularization
thereafter as 'spoiled system'. There is no
dearth of judgements of the High Court at
Allahabad on the judicial side setting
aside appointments made in public
employment
at
various
offices/departments under its power of
judicial review, only on the ground that
Article 14 and 16 of the Constitution of
India prohibit appointment without proper
advertisement being made so as to enable
the public at large to participate in the
process of selection.

6. What the High Court preaches
vide its judgments it does not follow in
practice when it comes to appointment on
Class IV posts in the establishment of the
High Court at Allahabad as well as
Lucknow. It is dispressing and disturbing.
The petitioner reminds the Court through
this petition to practice what it preaches.

7. Two decades ago the Supreme
Court of India, perturbed by the unabated
exercise of powers under Article 229 of
the Constitution of India, had to painfully
remind the High Court of Karnataka about
the width and expanse of the powers so
conferred and to be exercised by the
Hon'ble The Chief Justice of the High
Court. The judgment describes the powers
so conferred by the Constitution to be
bounded by solid embankments of legal
principles cherished by our system with a
strong cautionary that the exercise of
administrative independence should not
overflow
the
parameters
of
the
fundamental rights guaranteed under the
Constitution. The same is preserved for
posterity in Putta Swamy H.C. vs. High
Court of Karnataka (1991) Suppl. (2)
SCC, 421 and still holds the field.

8. Learned counsel for the petitioner
submits that we function in a democracy
where the principles of equality are
zealously protected which tell us not to
discriminate, and to deliver justice both
on the judicial side and administratively
in a way that our actions are transparently
beyond doubt. There should be no
misgiving that the High Court or its
authorities are Aladdin with some magical
lamp which has the capacity to generate
employment riches at will. Our minds
should be plainly reflected in our outward
actions with no scope for doubt in our
intents. Judges are not outsiders or
intruders immune from the mandate of the
Constitution and any accusation should
not partake the nature of a permanent blot.
The stains, if any, should be removed by a
careful application of the legal broom
sweeping away any infection that might
eat at the roots of this institution.

9. The petitioner contends that he
has been treated with an unequal hand,
and he too intends to join the same
bandwagon of "Recomendees of Hon'ble
Judges" as narrated in his petition. This
'sudden' activity which gained popularity
as a traditional source of employment, in
spite of the advent of the Constitution, has
been continuing for a fairly long period
without advertisement. This fact is
1 All] Radhey Shyam Tiwari V. Registrar General High Court and others
149
admitted to the High Court that as far as
memory reflects, no Class IV appointment
has
been
initiated
through
an
advertisement. This probably impelled the
petitioner to carry a mistaken belief about
a fair chance of his success through the
same
door
open
for
recommendees/relatives etc. only. Not
only this, his pleadings and prayer are
both tailored to suit this purpose even
though there is a direct complaint about a
wrong procedure having been adopted by
the High Court for selections.

10. In reply it is submitted by Shri
Neeraj Upadhyaya, learned counsel for
the High Court that -

(a) appointments in question have been
made as Daily Labourer referable to Rule
4 of the Rules, 1976 under the orders of
the Hon'ble The Chief Justice.

(b) Rules, 1976 lay down no procedure
for appointment of Class IV employees by
direct recruitment.

(c) The Hon'ble The Chief Justice has
not issued any orders under Rule 45 of the
Rules, 1976 for laying down the mode
and manner of appointment by direct
recruitment on Class IV posts.

(d) For several decades there has been a
constant practice of engagement of daily
labourers on Class IV posts and thereafter
to offer regular appointment to them. At
no point of time the process
of
advertisement of the vacancies was
adopted.

11. Shri Upadhyaya specifically
stated that an error of procedure has crept
in due to past practice that had been
adopted and it is for this reason that there
is
non-adherence
to
the
rule
of
advertisement
of
vacancies
before
appointments as enshrined under Article
14 and 16 of the Constitution of India. He
has been fair enough to state that Rules,
1976 have to be read in a manner to be in
consonance with Article 14 and 16 of the
Constitution
of
India
and
not
in
derogation thereof. He submits that the
wrong practice followed shall be rectified
appropriately in future about which he has
specifically been instructed to inform the
Court on behalf of the administrative side
of the High Court. He stated that all
future appointments on Class IV posts
to be filled by direct recruitment under
Rule 4 of Rules, 1976 (with whatever
nomenclature) shall be made only after
advertisement of the vacancies and this
Court may not interfere with the
appointments made till date treating
the same to be the last exercise as per
the old practice.

12. This petition is a union of
sorrows mildly narrated as a resentment
on account of discrimination. It is a
combination of a claim and a complaint
which in my opinion serves a larger
purpose, giving the High Court a golden
opportunity to rectify its errors. Edmund
Burke said "our antagonist is our
helper".

13. Rule 4 (a) of the Rules, 1976
provides for the appointment on Class IV
posts by direct recruitment and reads as
follows:

"Source of recruitment to Class IV
posts:- The sources of recruitment to the
various class IV posts in the establishment
shall be as follows :
150 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
(a)
Peon,
farrash
collied,
bhisti,
sweeper, mali, fireman chowkidar and
liftman:-
By
direct
recruitment
as
provided in Rule (Provided that in making
such recruitment preference shall first be
given to suitable persons already engaged
by the High Court as daily Labourers. If
after making recruitment from this
source some vacancies are left unfilled
for
want
of
suitable
persons,
the
remaining vacant posts shall be filled by
inviting applications through Employment
Exchange.)
(b) Jamadar:- By promotion from
amount permanent peons.
(c) Daftari:- By promotion from amongst
permanent peons, farrashes and liftman;
Provided that for the post daftari only
such persons shall be eligible who, to the
satisfaction of the appointing authority,
possess
requisite
knowledge
and
experience of the work of book binding.
(d) Bundle Lifter:-By promotion from
amongst permanent peon, farrashes and
liftmen.
(e) Head Mali:- By promotion from
amongst permanent malis, provided a
suitable person is available; otherwise, by
direct recruitment of a person possessing
requisite knowledge and experience of
gardening and ability to supervise the
work of malis."

14. The Rules, 1976 does not lay
down any procedure to be followed for
making appointment by direct recruitment
on Class IV posts. The Hon'ble The Chief
Justice has also not issued any order
laying down the procedure in exercise of
his powers under Rule 45 of the Rules,
1976 (as per the statement of the counsel
for the High Court).

15. The words 'preference shall first
be given to suitable persons already
engaged by the High Court as Daily
Labourer ............." in Rule 4, has been
subject matter of consideration in a recent
order of the High Court dated 24.02.2010
passed in Civil Misc. Writ Petition No.
7212 of 2010 (Diwakar Singh vs.
Registrar
General,
High
Court
of
Judicature at Allahabad and others) and it
has been held as follows :

"There is no separate procedure
provided for the engagement of a daily
labourer or a daily labourer driver. Rule 4
of the 1976 Rules and the proviso to Rule
14 of the 2000 Drivers Rules both refer to
a preference being given to daily
labourers/ daily labourers drivers at the
time of making recruitment to permanent
posts. There is one distinction namely that
in Rule 4 of the 1976 Rules the word
preference has been qualified by the word
"shall first be given to suitable persons
already engaged by the High Court as
daily labourers" whereas in Rule 14 of
2000 Drivers Rules, the word "first" is
missing. None-the-less both the Rules
indicate
that
recruitment
of
other
candidates shall be made only if some of
the posts remain unfilled after making
recruitment
from
these
preferential
sources as indicated here inabove.
Thus there is no doubt that the rules
create an embargo for making selections
by direct recruitment against class IV
posts, and preferentially and primarily
limit it to be a selection from amongst the
already engaged daily labourers/daily
labourers drivers. This preferential right,
as indicated in the Rules, therefore,
creates a legitimate expectation in favour
of such candidates, who are already
engaged as daily labourers/daily labourer
drivers. It is on the strength of such a
qualification that they become the feeding
source of recruitment and it is only when
1 All] Radhey Shyam Tiwari V. Registrar General High Court and others
151
they are found unsuitable, that persons
from the open market have to be
considered. The rule, therefore, creates a
strong caveat in favour of the power to be
exercised by the High Court and the
Hon'ble
Chief
Justice
for
making
appointment against class IV and Class III
vacancies, as referred to in the Rules from
such special category candidates to the
exclusion of others. If the rules are spelt
out, then the administration is bound by it.
As long as a word remains unspoken, you
are its master; once you utter it, you are
its slave.
The Rules, create a special category
of candidates for direct recruitment with a
substantial preferential right which places
them in a special class as against the
candidates from the open market. This
right created in favour of such a candidate
compels the selecting authority to choose
within the same category first and in the
event the posts remain unfilled then the
general rule has to be followed. The
language of the aforesaid rules is,
therefore, couched in a language that
creates a protective shield which is almost
impregnable. The expectation is not
merely legitimate but is almost in the
nature of a cast iron provision. It is thus
clear that a daily labourer or a daily
labourer driver is engaged not merely for
continuing on a casual daily wage basis
but he is engaged so as to form the pool of
candidates who have a right to be
considered preferentially in the first place
to the exclusion of the candidates from
the open market. This rule, therefore, is a
shirt of iron clothed with which a daily
labourer/daily labourer driver of the High
Court prevents and rather prohibits the
consideration of any of the candidates
from open market. This right to pre empt
the open market candidates almost to their
exclusion
places
such
daily
labourers/drivers on a higher pedestal
thereby creating a class within a class.
Can such a right so created under
Rules be construed to be a mere formality
which does not require to be in
conformity with Articles 14 & 16 of the
Constitution of India? The answer to this
question will be required to be given
keeping in view the mandate of this Court
and the Supreme Court which has time
and again been reiterated to the effect as
to whether such a Rule can be pressed
into service in teeth of Articles 14 & 16 of
the Constitution of India.
In the instant case there is no doubt
that the rules, as discussed aforesaid, have
to conform to Articles 14 & 16 of the
Constitution of India as they create a right
even in favour of a daily labourer or a
daily labourer driver. One of the facets of
Article 14 in service jurisprudence has
been to include the process of publication
and advertisement as part of the process
of selection that conforms to the aforesaid
provisions of the constitution. There is no
dearth of authorities to that extent and the
following judgment would suffice for the
same:-
State
of
Bihar
Vs.
Upendra
Narayan Singh & others 2009 (5) SCC
Page 65.
Apart from the aforesaid judgment
the Supreme Court has very lately upheld
a similar view taken by a Division Bench
of our Court in the case of Rajesh Kumar
Srivastava Vs. State in Writ Petition No.
3790 of 2004 decided on 29.4.2007. The
SLP against the same was dismissed by a
speaking order being Civil Appeal No.
1139 of 2010 decided on 29.1.2010.
The argument at first flush that the
engagement of daily labourer does not
require advertisement may appear to be
attractive but the same is totally unfit for
the occasion at hand. Apart from this the
152 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
constitution bench decision in the Case of
Secretary, State of Karnataka Vs. Uma
Devi and others, reported in 2006 (4)
SCC 1 further whittles down the
engagements of daily wagers through side
lanes and then their regularization through
back door methods. The decision has
deprecated the same".

16. This Court is in respectful
agreement with what has been said in the
case of Diwakar Singh (supra).

17.

The
requirement
of
advertisement in the matter of direct
recruitment on Class IV posts under Rule
4(a) of Rules, 1976 is even more
imperative inasmuch as in the case of
Class IV employees under Rule 4(a), the
word "preference" has been prefixed with
the word 'first' while in the case of Driver,
only preference has been provided to
daily labourers. Words 'first preference'
shall necessarily exclude other categories
of
candidates
namely
the
persons
available in the open market from
consideration so long as the list of daily
labourers is not exhausted. No person
from open market can be considered so
long as a suitable daily labourer is
available. Precisely this is what has
happened in the last 3 decades in the High
Court.
Persons
appointed
as
daily
labourers alone have been adjusted
against substantive post with the help of
Rule 4(a) of Rules, 1976 leading to a
situation where the public at large has
been completely excluded even from an
opportunity
to
participate
and
be
considered in the process of selection.
This Court has no hesitation to hold that if
'first preference' is to be given to daily
labourers in regular appointment, then
their appointment has to be initiated by a
proper advertisement published in widely
circulated newspaper throughout the State
so that Article 14 and 16 are not diluted in
any manner. The High Court has to act on
the administrative side in the manner it
preaches vide its judgment on the judicial
side. After all Law is an orderly way of
discovering what you cannot do as you
wish.

18. The importance of publishing an
advertisement before proceeding to make
any appointment is to bring it to the
knowledge of the proposed recipients;
namely the public at large the opportunity
available for engagement as an employee.
The matter, therefore, requires wide
publicity
as
it
relates
to
public
employment which has to be proceeded
by fair steps being taken for the same.
The conclusion, which can be drawn on
the basis of reasoning given by the
learned single Judge in the case of
Diwakar Singh (Supra) is clearly to the
effect that once it is held that the
engagement of a daily labourer carries
with it, the right to be considered to the
exclusion of others en bloc, then it
necessarily
requires
the
engagement
through an advertisement.

19. The rule of first preference is
clearly meant to exclude others from the
zone of consideration. This is fortified by
the language used in Rule 4 of the Rules,
1976. Thus, those who get a berth as a
daily labourer, also have a guarantee of
further
being
offered
permanent
appointment as Class IV employee before
any other person can even be considered.
This in essence is the interpretation that
can be given to the Rule 4 of Rules, 1976
and once this is so, there is no gainsaying
that Articles 14 and 16 will not apply.
1 All] Radhey Shyam Tiwari V. Registrar General High Court and others
153

20. The rules, therefore, have to be
reasonably construed so as to make the
scheme workable in conformity with the
constitutional mandate. In my considered
opinion, the engagements for such daily
labourers have to be scrutinized only after
inviting applications through a publicised
advertisement
in
widely
circulated
newspapers throughout the State.

21. This Court may clarify that the
last line of Rule 4(a) of Rules, 1976 in so
far as it provides that the remaining
vacant posts shall be filled by inviting
applications
through
Employment
Exchange cannot be read in a manner to
suggest that by necessary implication
advertisement
of
the
vacancies
in
newspapers is excluded. The Hon'ble
Supreme Court of India has held that
invitation
of
applications
from
Employment Exchange can be only in
addition to the mode of advertisement in
newspapers and not to the exclusion
thereto. (Ref. Raj Kumar & others vs.
Shashi Raj & others reported in AIR
1997 SC, 2210). The legal position in that
regard has been explained in the Division
Bench judgment of the Calcutta High
Court in the case of Bhaskar Ranjan
Ghosh vs. Kamal Sen & others
reported in 2000 (4) ESC, 2682.

22. There is another aspect which
has to be taken care of, lest it should
invite
complications
i.e.
about
applications
being
received
on
recommendations of Hon'ble Judges. If an
advertisement
is
resorted
to
recommendation by Judges can be easily
avoided
without
causing
any
embarrassment to any Hon'ble Judge who
might be persuaded for some reason to
make a recommendation. This will also
save the administration from resorting to
any permutation or combination for
entertaining preferences.

23. Rules 41 and 45 are general
powers conferred on the Hon'ble The
Chief Justice. Such conferment of powers
are not unusual and are also necessary as
it is not possible to foresee every
situation. The grant of power is, therefore,
to meet unforeseen or unprecedented
situations where there are no rules or
guidelines or even otherwise in almost
impossible situations. While entering
upon a judicial review in such matters, the
unreasonableness is to be found in its
exercise and not in its existence. Rule 45,
even though commences with a nonobstante clause, it does not and cannot
override the constitutional limitations.
Article 229 itself is subject of Articles 14
and 16 of the Constitution of India and,
therefore, as a natural logical conclusion
the powers under the Rules, 1976 are also
subject to such limitations. Rule 45 has no
absolute immunity from law under the
Constitution.

24. The vesting of the discretionary
power in a high public dignitary is by
itself a guarantee that the power will be
exercised on the basis of reasonable
standards for the purpose intended under
the rule. Reference: D.K. Pandey vs.
Hon'ble High Court of Judicature at
Allahabad reported in 2007 (4) AWC,
3448 (paragraph 16) relevant portion
whereof reads as follows:

"It is difficult to conceive that a high
constitutional functionary vested with the
powers to protect the right of the citizen
of the State would violate these rights in
exercise of his extraordinary powers. All
such powers are conferred to carry out the
154 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
purpose of the rules and must be used
only for that purpose."

25. The issue now which remains for
consideration before this Court is as to
whether such illegal appointments which
are under consideration before this Court
should be permitted to go unnoticed
merely because it has been the practice of
this Court to act de hors the constitutional
provisions.

26. The petitioner before this Court
alleges that he had made applications
containing
recommendations
of
the
Hon'ble Judges as early as on 03.01.2006
and 11.01.2007 respectively, for being
appointed as Class IV employee. He
further submits that on 11.01.2010, he
made another application before the
Registrar General for being appointed as a
daily labourer. Copies of the applications
have
been
brought
on
record
as
Annexure-1 and 2 to the writ petition. He
submits that his case was not considered
and no reason apparently exists for non
consideration of the application of the
writ
petitioner
specifically
when
applications of similarly situate persons
including those residing in other States
and in other places outside Allahabad
have been considered.

27. In these set of circumstances and
in view of the admitted position that the
appointment of respondents no. 04 to 16
have been made without there being any
advertisement and without there being
any process of selection and consideration
amongst similarly situate candidates like
the petitioner, it is the duty of the Court to
ensure that injustice is set at rest. The
Court is of the opinion that what has been
practised for more than three decades
brought to a halt. The infringement of
Article 14 and 16 of the Constitution of
India cannot be permitted to continue any
further, therefore, appropriate steps are
required to be taken. A stitch in time
saves
nine.
Illegality
cannot
be
perpetuated nor it is appropriate for the
highest Court of the State to act in a
manner so as to shake the confidence of
the public at large.

Accordingly, the following directions
are being issued at this interim stage:

a. In view of the conceded position
by the High Court through its counsel as
noted above, no further appointment on
Class IV posts covered by Rule 4(a) of the
Rules, 1976 in the establishment of the
High Court both at Allahabad and at
Lucknow, shall be made in any capacity
except
after
due
publication
in
newspapers having wide and adequate
circulation.

b. It shall be open to the High
Court to take work or not to take work
either from the respondents no. 04 to 16
or any such engagements that have been
made along with the said respondents or
on any date subsequent to the date of their
appointment in the establishment of the
High Court. However they shall not be
paid their salary without the leave of the
Court.

c. Respondents no. 04 to 16 and
similarly situate persons shall not be
regularized nor they shall be granted any
preference in terms of Rule 4 at the time
of regular appointment.
Issue notice to respondents no. 4 to
16. The said respondents may be served
through the Registrar General of this
Court who may also inform similarly
situate persons, if any, of the pendency of
1 All] Pintoo and others V. State of U.P.
155
this writ petition, for putting in their
appearance. Steps may be taken within
ten days.

28. Further since the matter
pertaining to daily labourer Drivers
similarly
appointed
without
advertisement, is being considered in
Civil Misc. Writ Petition No. 7212 of
2010 (Diwakar Singh vs. Registrar
General, High Court of Judicature at
Allahabad), it would be appropriate that
this writ petition may also be tagged
along with the said writ petition so that all
issues pertaining to appointment in the
establishment of the High Court both at
Allahabad and Lucknow are adjudicated
under one common judgment.

29. Tag and list with Civil Misc.
Writ Petition No. 7212 of 2010 on
22.03.2010.

30. The records of the applications
of respondents no. 04 to 16 are being
returned to Shri Neeraj Upadhyaya,
counsel for the High Court.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.02.2010

BEFORE
THE HON'BLE AMAR SARAN, J.

Criminal Misc. Bail Application No.22094
of 2009

Pintoo and others

...Applicants
Versus
State of U.P.

 ...Opposite Party

Counsel for the Applicant:
Mr. L.K. Pandey
Mr. P.C. Pandey

Counsel for the Opposite Party:
Govt. Advocate

Code of Criminal Procedure-Cancellation
of Bail-offence under Section 302/341
IPC-on
ground-main
prosecution
witness-turned hostile and facing Notice
u/s 181 I.P.C.-disclosed the reason of
threat to kill the son of such witness-trail
court rightly come to the conclusion for
cancellation of bail-approach made by
learned Trail Court in accordance with
verdict of Apex Court.

Held: Para 18 & 19

For all the aforesaid reasons I see no
illegality in the order of the learned
Additional Sessions Judge dated 29.7.09
cancelling the bail of the applicants. The
prayer for bail on behalf of the applicants
is also rejected. The trial is however
expedited. The Court concerned shall
conclude the trial within three months of
filing of the certified copy of this order.

Before parting I would like to record my
appreciation of the Additional Sessions
Judge/ FTC-2, Kaushambi , Dr. Bal
Mukund, who passed the impugned
order for his timely and pro-active
attempt at dispensing justice in the
wake of the determined bid of the
mischievous accused to subvert the
course of justice. With this objective on
the very date that the witness turned
hostile, the Court issued notice to the
witness as to why he should not be
punished
under
section
181
IPC,
encouraging the witness to come out
with the true reason for his hostility, and
thereafter by issuing notice to the
accused asking them to explain why
their
bail
be
not
cancelled,
and
eventually by cancelling their bail. This
appears
to
have
emboldened
the
subsequent witness PW-2 Ramraj to
affirm his earlier version in the First
Information
Report,
and
to
have
prevented him from also turning hostile.
The judge thereby fulfilled the mandate
of the Supreme Court in letter and spirit,