# Ramesh Chandra Maurya v. State of U.P. and others

- **Citation:** (2013) 1 ILRA 378
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-03-04
- **Case number:** Service Single No.8005 of 2010
- **Bench:** Anil Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramesh-chandra-maurya-v-state-of-u-p-and-others-42503
- **Pages:** 4

## Headnote

Constitution
of
India-Artcle-226-
Service
Law-period
of
short
time
working
w.e.f.
13.07.1983
to
26.05.1989-on post of Gram Panchayat
Adhikari-whether can be counted for
other consequential service benefits?-
held-'No'-word re-appointment-denotes
'first
regular
appointment
on
26.05.1989-so
short
term
working
followed by termination-can not taken
into consideration.

Held: Para-18

Lastly, the petitioner was given appointment
on the post of Gram Panchayat Adhikari by an
order dated 09.05.1989 (Annexure No. 6) in
pursuance to the Government Order dated
20.10.1986, even if the words mentioned in
the appointment order are "पुनः िनयु'$
समायो.जत" but the said date (09.05.1989)
shall be the date of his appointment in the
department on the post of Gram Panchayat
Adhikari and that date shall be the starting
point of his career. So, the relief as claimed by
the petitioner for giving benefit of the service
rendered
by
him
w.e.f.
13.07.1983
to
26.05.1989 on the post of Gram Panchayat
Adhikari cannot be granted, as such, the
petitioner cannot derive any benefit from the
law as laid down by Hon'ble the Supreme
Court in the case of Sushil Kumar (Supra)
because the same is not applicable in the facts
and circumstances of the present case.

Case Law discussed:
(1986) 3 SCC 325; (2000) 10 SCC 659;
2001(5)SCC358; JT 1993(1) SCC 360

## Text

378 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
individual
dispute
raised
by
the
complainants in respect of their individual
grievances pertaining to their service
conditions.

19. In view of discussions made
above and having regard to the judgment
of Division Bench of this Court in the
case of Prof. Banarsi Tripathi (supra), I
have no hesitation to hold that the order
dated
13.08.2004,
passed
by
the
Commission
is
well
beyond
its
jurisdiction and authority vested in it
under the provisions of Act.

20. This, the writ petition deserves
to be allowed.

21. Accordingly, the writ petition is
allowed. A writ in the nature of certiorari
is issued and the impugned order dated
13.08.2004,
passed
by
the
State
Commission for Backward Classes, U.P.
in Case No. 226 of 2000, Sri Ram Sewak
and
others
-versus-
Regional
Joint
Director of Education, Lucknow is hereby
quashed.

22. There will be no order as to cost.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.03.2013

BEFORE
THE HON'BLE ANIL KUMAR, J.

Service Single No.8005 of 2010

Ramesh Chandra Maurya
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri B.R. Singh

Counsel for the Respondents:
C.S.C.

Constitution
of
India-Artcle-226-
Service
Law-period
of
short
time
working
w.e.f.
13.07.1983
to
26.05.1989-on post of Gram Panchayat
Adhikari-whether can be counted for
other consequential service benefits?-
held-'No'-word re-appointment-denotes
'first
regular
appointment
on
26.05.1989-so
short
term
working
followed by termination-can not taken
into consideration.

Held: Para-18

Lastly, the petitioner was given appointment
on the post of Gram Panchayat Adhikari by an
order dated 09.05.1989 (Annexure No. 6) in
pursuance to the Government Order dated
20.10.1986, even if the words mentioned in
the appointment order are "पुनः िनयु'$
समायो.जत" but the said date (09.05.1989)
shall be the date of his appointment in the
department on the post of Gram Panchayat
Adhikari and that date shall be the starting
point of his career. So, the relief as claimed by
the petitioner for giving benefit of the service
rendered
by
him
w.e.f.
13.07.1983
to
26.05.1989 on the post of Gram Panchayat
Adhikari cannot be granted, as such, the
petitioner cannot derive any benefit from the
law as laid down by Hon'ble the Supreme
Court in the case of Sushil Kumar (Supra)
because the same is not applicable in the facts
and circumstances of the present case.

Case Law discussed:
(1986) 3 SCC 325; (2000) 10 SCC 659;
2001(5)SCC358; JT 1993(1) SCC 360

(Delivered by Hon'ble Anil Kumar, J)

1. Heard Sri B.R. Singh, learned
counsel for petitioner, Sri A.N. Trivedi,
learned State counsel and perused the
record.
1 All] Ramesh Chandra Maurya Vs. State of U.P.and others
379

2. Facts of the present case are that
petitioner was initially appointed on the
post of Gram Panchayat Adhikari on
13.07.1983
in
the
Panchayat
Raj
Department, State of U.P. and posted
under District Panchayat Raj officer,
Raebarerli. While he was working and
discharging his duties his services has
been
terminated
by
order
dated
1/3.05.1984 (Annexure No. 2) on the
ground that 35 Gram Panchayat Adhikari
who were working on deputation have
been repatriated back to their substantive
post in the Panchatraj Department.

3.

Thereafter,
on
08.01.1985
(Annexure No. 4) petitioner was given
appointment on the post of Gram
Panchayat Adhikar by means of order
dated 08.01.1985 (Annexure No. 4) and
posted at Maharajganj. In the said
capacity, he worked and discharged his
duties upto 16.12.1987. Again some
persons who are working in a different
department had been repatriated back on
the post of Gram Panchayat Adhikari, so
the services of the petitioner was
terminated.

4. Subsequently, in view of the
Government Order dated 20.10.1986, the
petitioner appointed on the post of Gram
Panchayat Adhikari by means of the order
dated 09.05.1989 (Annexure No. 6)
passed by Director, Panchayat Raj, U.P,
Lucknow.

5. In view of the abovesaid factual
background, the petitioner had filed the
present writ petition before this Court
praying that the services rendered by him
w.e.f. 13.07.1983 to 26.05.1989 on the
post of Gram Panchayat Adhikari may be
counted for his service benefit.

6. Sri B.R. Singh, learned counsel
for petitioner in order to press the said
relief submits that from the perusal of the
order dated 09.05.1989 (Annexure No. 6)
passed by Director, Panchayat Raj, by
which the petitioner has been appointed
on the post of Gram Panchayat Adhikar,
the word mentioned are "पुनः िनयु'$
समायो.जत"So taking into consideration the
said material fact, the petitioner is entitled
for all the service benefits for the services
rendered by him in the department from
13.07.1983 to 26.05.1989. In support of
his contention,
learned
counsel
for
petitioner has relied on the judgment
passed by Hon'ble the Supreme Court in
the case of Sushil Kuamr Yadunath Jha
Vs. Union of India and another, (1986)
3 SCC 325.

7. Sri A.N. Trivedi, learned
Additional Chief Standing Counsel while
rebutting the contention of the petitioner
submits that as in the appointment order
dated 09.05.1989, the word which has
been mentioned "पुनः िनयु'$ समायो.जत", so
it is a fresh appointment of the petitioner
on the post in question which has been
accepted by him. Thus, taking into
consideration the said facts, the relief as
claimed by the petitioner for counting the
service rendered by him w.e.f 13.07.1983
to 26.05.1989 on the post of Gram
Panchat Adhikari cannot be granted to
him for the purpose of service benefit.

8. I have heard learned counsel for
parties and gone through the record.

9. The core question which is to be
decided in the present case is whether in
view of the words mentioned in the
appointment
order
dated
09.05.1989
passed by Director, Panchayat Raj, i.e.
380 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
"पुनः िनयु'$ समायो.जत", means the same is
a fresh appointment of the petitioner on
the post of Gram Panchayat Adhikar or
not?

10.

The
word
"पुनः
िनयु'$"
mentioned in the order dated 09.05.1989
means
"reappointment"
whereas
"समायो.जत" means "absorption".

11. Further, word "पुनः िनयु'$"/reemployment is defined in the "Words
and
Phrases
Permanent
Edition
Volume 36-B at page 96" as "reemployment" means the same service in
which he was formerly employed"

12. The word "absorption" is
defined in Encyclopaedic Law Lexicon
by Justice C. K. Thakker at page 26 as
under:-

"The term "absorbed" in service
Jurisprudence with reference to a post in
the very nature of things implies that an
employee who has not been holding a
particular post in his own right by virtue
of either recruitment or promotion to that
post but is holding a different post in a
different department is brought to that
post either on deputation or by transfer
and is subsequently absorbed in that post
where after he becomes a holder of that
post in his own right and loses his lien on
his parent post (See. Devdutta and others
Vs. State of M.P. And others, (1991)
Supp. (2) SCC 553.

13. Hon'ble the Apex Court in the
case of J & K State Road Transport
Corporation Vs. Om Prakash and others,
1998 (7) SCC 662, has held that "reemployment
means
when
regular
employment has "ceased".

14. In the case of Union of India
and others Vs. Rekha Majhi (2000) 10
SCC 659, Hon'ble the Supreme Court has
considered the word expression "reemployment" and it has been held that
being the object of the rule, we have to
give a wider meaning to the expression
"re-employed" which finds place in Rule
75(21)(ii) of the Rules. The expression
"re-employed", if construed in the light of
the object behind the Rule and facts of
this case, would also include first regular
appointment in the service (See. M.S.
Chawla and others Vs. State of Punjab
and another , 2001 (5) SCC 358).

15. Appointment is effected by the
employer
through
a
contract
of
employment. As in every contract, so in a
contract of public employment an offer of
appointment to the candidate sought to be
employed and his acceptance of the offer
forms
the
basis
of
appointment.
Appointment is made to a vacancy and in
a post. It is, therefore, made by a positive
and deliberate act of engagement creating
a relationship between employer and
employee. Appoinment is the starting
point of a career in public employment. It
confers a status and ensure all the rights
that are attached to public service,
including
confirmation,
seniority,
promotion, and so on tenure. (See. Besant
Lal Vs. State of Punjab AIR 1969 P&H
178).

16. Hon'ble the Supreme Court in
the case of Prafulla Kr. Swain Vs.
Prakash Ch. Misra, JT 1993 (1) SCC 360
held that appointment means an actual act
of posting a person to a particular office
and anything short of it cannot be
construed as appointment.
1 All] Smt. Urmila Jaiswal Vs. State of U.P.and others
381

17. As such, although the petitioner
has been initially appointed on the post of
Gram Panchayat Adhikari on 13.07.1983,
however, by order dated 02.05.1984 his
services were terminated/dispensed, again
appointed on the said capacity uptill
16.12.1987, thereafter, his services were
terminated.

18. Lastly, the petitioner was given
appointment on the post of Gram
Panchayat Adhikari by an order dated
09.05.1989
(Annexure
No.
6)
in
pursuance to the Government Order dated
20.10.1986, even if the words mentioned
in the appointment order are "पुनः िनयु'$
समायो.जत"
but
the
said
date
(09.05.1989) shall be the date of his
appointment in the department on the post
of Gram Panchayat Adhikari and that date
shall be the starting point of his career.
So, the relief as claimed by the petitioner
for giving benefit of the service rendered
by him w.e.f. 13.07.1983 to 26.05.1989
on the post of Gram Panchayat Adhikari
cannot be granted, as such, the petitioner
cannot derive any benefit from the law as
laid down by Hon'ble the Supreme Court
in the case of Sushil Kumar (Supra)
because the same is not applicable in the
facts and circumstances of the present
case.

19. For the foregoing reasons, the
writ petition lacks merit and is dismissed.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.03.2013

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE ABHINAVA UPADHYA, J.

Civil Misc. Writ Petition No. 10384 Of 2013
Smt. Urmila Jaiswal

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri S.S.P. Gupta
Sri Anil Pandey

Counsel for the Respondents:
C.S.C
Sri Akhilesh K. Dwivedi
Sri Ramesh Rai

Constitution of India, Art.-226- Power of
Review-Appeal against cancellation fair
price shop-dismissed -subsequently-on
review
application-commissioner
allowed the appeal and remanded back
for fresh decision-whether power of
review can be exercised in absence of
statutory
provision?-Held-'No'
under
clause 28 of U.P. Scheduled commodities
distribution
order
2004-no
such
provision of review impugned order
including entire subsequent proceedingwithout jurisdiction.

Held: Para-26

Thus, from the proposition of law as
noted above, it is clear that when the
Statute does not confer any power of
review
expressly
or
by
necessary
implication the power of review cannot
be inherent. The distinction which is
sought to be raised by the counsel for
the respondent no.4 that a mistake was
said to be corrected by Commissioner
under
the
inherent
power
is
not
acceptable. The Commissioner expressly
exercised the power of review and
allowed the review application vide
order dated 28.12.2012, which is beyond
his jurisdiction.

Case Law discussed:
1997 R.D. Page 562; 2003 ACJ 1906; 2007(9)
ADJ 581 (DB); AIR 1996 SC 2592; 2005(4)
AWC 3563; ADJ 2010 (3) 685; 2008(2)
UPLBEC 1256; AIR 1999 SC 3609; 1987 (4)