# Sachin Yadav v. State of U.P. & Ors

- **Citation:** (2024) 8 ILRA 1273
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-28
- **Case number:** P.I.L. (Civil) No. 756 of 2024
- **Bench:** Arun Bhansali, C.J. Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sachin-yadav-v-state-of-u-p-ors-54568
- **Pages:** 14

## Headnote

1274 INDIAN LAW REPORTS ALLAHABAD SERIES
Civil Law -Public Interest Litigation-Uttar
Pradesh Zila Panchayat Monitoring Cell
Gazetted Officers Service Rules, 2004-The
Uttar Pradesh Zila Panchayat Monitoring
Cell Gazetted Officers(First Amendment)
Service Rules, 2023-writ of quo warranto
sought-appointment and promotion of one
Arvind Kumar Rai in Uttar Pradesh Zila
Panchayat Monitoring Cell-his initial ad
hoc
appointment
and
subsequent
regularisation-tested by the court on anvil
of consistency with statutory rules and
government orders-petitioner failed to
demonstrate illegality- petition dismissed.
(Paras 22, 23, 26, 27 and 28)

HELD:
The bone of contention is whether it was open
for the St. Government to have made the fifth
respondent
regular
on
18.07.2006
post
enforcement of the Uttar Pradesh Zila Panchayat
Monitoring Cell Gazetted Officer Service Rules,
2004 on the face of the provisions contained
under Rule 3(k) of Rules, 2004. Evidently, at the
time when the fifth respondent was appointed
as Engineer on ad hoc basis on 17.10.1992
against the temporary post created of Engineer
on 30.03.1992, there were no statutory rules in
force, meaning thereby, that the selections and
the condition of services were to be governed
by Government Orders issued from time to time.
Apparently, the posts which were temporary in
nature for a Ltd. period till 28.02.1993 vide
Government Order dated 30.03.1992 was made
permanent on 14.10.1998 which stands recited
in the Government Order dated 06.11.1998. The
fifth respondent prior to the enforcement of the
2004 Rules was made regular on 29.11.2000.
Though the Rule 3(h) defines member of
service, a person substantively appointed under
the rules or the rules or orders in force prior to
commencement of the rules to the post in the
cadre of the service and Rule 3(k), substantive
appointment means an appointment not being
an ad hoc appointment on the post in the cadre
of
the
service
made
after
selection
in
accordance with the procedure prescribed for
the time being by the executive instructions
issued by the Government. However, the same
would not in any manner whatsoever invalidate
any proceedings or action taken by the St.
Government while conferring benefit particularly
when the 2004 rules came into effect from
12.07.2004. (Para 22)

A Division Bench of this Court in the case of Anil
Kumar Verma Vs U.P. St. Industrial Development
Corp. Ltd. 2014 (8) ADJ 152 had exercised its
jurisdiction while issuing a writ of quo warranto
setting aside the appointment/promotion of a
Chief
Engineer
in
U.P.
St.
Industrial
Development Corp.. (Para 27)

Nevertheless we are of the firm opinion that the
selection, appointment and promotion of the
fifth respondent on the post of Engineer, Deputy
Director, Superintending Engineer and Additional
Charge as Chief Engineer is in consonance and
conformity with the Statutory Rules and the
Government Orders issued from time to time
and the writ petitioner has miserably failed to
show
any
illegality
committed
by
the
respondents.(Para 28)

Petition dismissed. (E-14)

List of Cases cited:

## Text

_Characters 0–39,904 of 44,613. This is a partial read: ask again with offset=39904 for what follows._

8 All. Sachin Yadav Vs. State of U.P. & Ors.
1273
of the parties during the trial after taking
and appreciating evidence led by the
parties. What relief can and can not be
granted has to be decided by this Court on
the basis of the pleadings and evidence
available on record. Beside this, the
plaintiffs have claimed several reliefs such
as cancellation, declaration, mandatory
injunction as well as for possession which
are subject to evidence to be led during the
trial. The question whether the suit is
barred by Section 34 of the Specific Relief
Act,1963 cannot be decided at this stage
without
taking
and
appreciating
the
evidence of the parties to be led during the
trial.

274. In view of the foregoing
discussions, in my opinion, it appears that
the suits of the plaintiffs are not barred by
provisions of Section 34 of the Specific
Relief Act,1963.

Conclusion:

275. On reading of the plaints as a
whole and in a meaningful manner, perusal
of
the
material
placed
on
records,
consideration of the arguments advanced
by the rival parties, and settled legal
propositions, I conclude that the plaints in
all the suits of the plaintiffs disclose a cause
of action and they do not appear to be
barred by any provisions of the Waqf Act,
1995; the Places of Worship (Special
Provisions) Act, 1991; the Specific Relief
Act, 1963; the Limitation Act, 1963 and
Order XIII Rule 3A of the Code of Civil
Procedure Code, 1908.

276. Therefore, the applications
for
rejection
of
plaints
moved
by
defendants no.1 and 2 in respective suits,
numbered as A-17, A-18 and A-37 in
OSUT No.01 of 2023; C-57 and C-69 in
OSUT No.02 of 2023; C-20 and C-45 in
OSUT No.04 of 2023; 14-Ka and A-14
in OSUT No.05 of 2023; A-20, A-30 and
A-32 in OSUT No.06 of 2023; A-16 and
A-39 in OSUT No.07 of 2023; A-21, A22 and C-23 in OSUT No.09 of 2023; A9 in OSUT No.11 of 2023; C-30 and C49 in OSUT No.12 of 2023; C-36 and A46 in OSUT No.13 of 2023; C-18 and C23 in OSUT No.14 of 2023; C-12 and C22 in OSUT No.15 of 2023; A-7, A-17
and A-18 in OSUT No.16 of 2023; A-14
in OSUT No.17 of 2023; and A-7 in
OSUT No.18 of 2023, are liable to be
rejected.

277. Accordingly, all the aforesaid
applications are hereby rejected.

278. Valuable assistance rendered
by my Research Associate, Ms Varnika
Srivastava, is appreciated.

279. Put up on 12.8.2024 at 2:00
pm, for issues.
----------
(2024) 8 ILRA 1273
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.08.2024

BEFORE

THE HON'BLE ARUN BHANSALI, C.J.
THE HON'BLE VIKAS BUDHWAR, J.

P.I.L. (Civil) No. 756 of 2024

Sachin Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Rakesh Pandey, Sr. Advocate, Umesh Vats

Counsel for the Respondents:
Manish Goyal, AAG, A.K. Goyal, A.C.S.C., Shashi
Prakash Rai, Shobhit Mohan Shukla
1274 INDIAN LAW REPORTS ALLAHABAD SERIES
Civil Law -Public Interest Litigation-Uttar
Pradesh Zila Panchayat Monitoring Cell
Gazetted Officers Service Rules, 2004-The
Uttar Pradesh Zila Panchayat Monitoring
Cell Gazetted Officers(First Amendment)
Service Rules, 2023-writ of quo warranto
sought-appointment and promotion of one
Arvind Kumar Rai in Uttar Pradesh Zila
Panchayat Monitoring Cell-his initial ad
hoc
appointment
and
subsequent
regularisation-tested by the court on anvil
of consistency with statutory rules and
government orders-petitioner failed to
demonstrate illegality- petition dismissed.
(Paras 22, 23, 26, 27 and 28)

HELD:
The bone of contention is whether it was open
for the St. Government to have made the fifth
respondent
regular
on
18.07.2006
post
enforcement of the Uttar Pradesh Zila Panchayat
Monitoring Cell Gazetted Officer Service Rules,
2004 on the face of the provisions contained
under Rule 3(k) of Rules, 2004. Evidently, at the
time when the fifth respondent was appointed
as Engineer on ad hoc basis on 17.10.1992
against the temporary post created of Engineer
on 30.03.1992, there were no statutory rules in
force, meaning thereby, that the selections and
the condition of services were to be governed
by Government Orders issued from time to time.
Apparently, the posts which were temporary in
nature for a Ltd. period till 28.02.1993 vide
Government Order dated 30.03.1992 was made
permanent on 14.10.1998 which stands recited
in the Government Order dated 06.11.1998. The
fifth respondent prior to the enforcement of the
2004 Rules was made regular on 29.11.2000.
Though the Rule 3(h) defines member of
service, a person substantively appointed under
the rules or the rules or orders in force prior to
commencement of the rules to the post in the
cadre of the service and Rule 3(k), substantive
appointment means an appointment not being
an ad hoc appointment on the post in the cadre
of
the
service
made
after
selection
in
accordance with the procedure prescribed for
the time being by the executive instructions
issued by the Government. However, the same
would not in any manner whatsoever invalidate
any proceedings or action taken by the St.
Government while conferring benefit particularly
when the 2004 rules came into effect from
12.07.2004. (Para 22)

A Division Bench of this Court in the case of Anil
Kumar Verma Vs U.P. St. Industrial Development
Corp. Ltd. 2014 (8) ADJ 152 had exercised its
jurisdiction while issuing a writ of quo warranto
setting aside the appointment/promotion of a
Chief
Engineer
in
U.P.
St.
Industrial
Development Corp.. (Para 27)

Nevertheless we are of the firm opinion that the
selection, appointment and promotion of the
fifth respondent on the post of Engineer, Deputy
Director, Superintending Engineer and Additional
Charge as Chief Engineer is in consonance and
conformity with the Statutory Rules and the
Government Orders issued from time to time
and the writ petitioner has miserably failed to
show
any
illegality
committed
by
the
respondents.(Para 28)

Petition dismissed. (E-14)

List of Cases cited:

1. Gambhirdan K. Gadhvi Vs St. of Guj., 2022
(5) SCC 179

2. Professor (Dr.) Sreejith P.S. Vs Dr. Rajasree
M.S., 2022 (4) SCT 711

3. Premchandran Keezhoth & ors.Vs The
Chancellor Kannur University & ors.., AIR 2024
SC 135

4. B. Srinivasa Reddy Vs Karnataka Urban Water
Supply & Drainage Board Employees' Assn. &
ors., 2006 (11) SCC 731

5. Central Electricity Supply Utility of Odisha Vs
Dhobei Sahoo & ors., 2014 (1) SCC 161

6. Arun Kumar Agrawal Vs U.O.I. & ors., 2014
(2) 609

7. Renu & ors.Vs District and Sessions Judge,
Tis Hazari Courts, Delhi & anr.reported in 2020
(14) SCC 50

8. Anil Kumar Verma Vs U.P. St. Industrial
Development Corp. Ltd. 2014 (8) ADJ 152
8 All. Sachin Yadav Vs. State of U.P. & Ors.
1275
(Delivered by Hon'ble Vikas Budhwar, J.)

1. Heard Shri Rakesh Pandey, Senior
Advocate assisted by Shri Umesh Vats,
learned counsel for the petitioner, Shri
Manish Goyal, learned AAG and Shri A.K.
Goyal, learned counsel for the StateRespondents as well as Shri Shobit Mohan
Shukla and Shri Shashi Prakash Rai,
learned counsel for Respondent No. 5.

2. A joint statement has been made
by the learned counsels for the rival parties
that the pleadings have been exchanged and
they do not propose to file any further
affidavits and the writ petition be decided
at the fresh stage. With the consent of the
parties, the writ petition is being decided at
the first stage.

Facts:

3. The fact of the case as
discernible from the record are that the
State Government in order to review the
functioning of the Zila Panchayat and to
strengthen them issued a Government
Order dated 30.03.1992 constituting "Zila
Panchayat Monitoring Cell" for reviewing
and monitoring the financial and physical
achievements of Zila Parishads and Zila
Panchayats of the State of Uttar Pradesh. In
order to man the Monitoring Cell, several
posts were created namely, three post of
Deputy Director, two posts of Engineer,
two posts of Karya Adhikari, two posts of
Senior Clerk, three post of Stenographer
and one post of Peon. Since the Monitoring
Cell was newly born thus post which stood
sanctioned was temporary for the period till
28.02.1993. In order to regulate the
procedure
for
the
selections
of
the
incumbents who were to man the newly
created post, the State Government issued
an office order dated 01.04.1992. As
regards, the posts of engineer which were
two in number is concerned, the same was
to be filled through a selection committee
constituted by the State Government from
the eligible candidates who had the
qualification of Bachelor of Engineering
(Civil). The fifth respondent after being
subjected to the selections conducted by the
selection
committee
was
issued
an
appointment
order
dated
17.10.1992
appointing him on the post of Engineer
(Civil) on ad hoc basis in the pay scale of
Rs. 2200-75-2800 EB 100-4000.

4. Pleadings reveal that the
proceedings were initiated for making the
temporary
post
as
permanent,
on
14.10.1998 with the concurrence Governor
of the State of Uttar Pradesh, an order came
to be issued according approval for making
the temporary posts which stood created by
virtue of the Government order dated
30.03.1992 as permanent. Thereafter on
29.11.2000, an office order came to be
issued by the Deputy Secretary, Panchayati
Raj Anubhag-II,
Uttar
Pradesh,
U.P.
Government wherein the fifth respondent
along with 9 others were made regular. In
the meantime in exercise of the powers
conferred by proviso to Article 309 of the
Constitution of India, the Rules by the
name of "Uttar Pradesh Zila Panchayat
Monitoring Cell Gazetted Officers Service
Rules, 2004" (in short 'Rule 2004') came
to be enacted which was gazetted on
12.07.2004, Rule 5 of the said Rules
provided for recruitment, according to
which, the post of Deputy Director was to
be filled up 33-1/2 % by promotion through
the selection committee from amongst
substantively appointed engineer who had
completed eight years of service as such on
the first day of the recruitment, 33-1/2 %
by promotion through selection committee
from amongst substantively appointed
1276 INDIAN LAW REPORTS ALLAHABAD SERIES
Karya Adhikari who had completed 8 years
of service as such on the first day of
recruitment and 33-1/2% by promotion
through the selection committee from
amongst substantively appointed medical
officers who have completed eight years of
service on the first day of recruitment. As
regards, the post of engineer, the same was
to be filled up by direct recruitment through
Commission. On 18.07.2006 an order came
to be passed by the Principal Secretary/
Chief Secretary Panchayati Raj Civil
Secretariat, U.P. Lucknow whereby the
fifth respondent services was made regular
while substituting the word "ad hoc" as
recited in the order dated 17.10.1992 as
'regular'. On 25.02.2013, an order came to
be passed by the Principal Secretary/
Additional Chief Secretary Panchayati Raj
Civil Secretariat, U.P. Lucknow whereby
the
fifth
respondent
was
accorded
promotion on the post of Deputy Director
in the pay scale of Rs. 15600-33100 GP
6600.

5. On 10.04.2023, the State
Government in exercise of the powers
conferred under Rule 4 (1) of the Rules,
2004 proceeded to restructure the cadres
while converting the post of Deputy
Director (Technical) to the post of
Executive Engineer (Civil) and two post of
Medical Officer and one post of Deputy
Director, Medical Officer was surrendered
and
in
its
place,
one
post
of
Superintending Engineer (Civil) and one
post of Chief Engineer (Level-II) was
created. On 30.06.2023, the Uttar Pradesh
Zila Panchayat Monitoring Cell Gazetted
Officers (first Amendment) Service Rules,
2023 (in short 'Amendment Rules, 2023')
came to be notified amending the 2004
Rules,
whereby one post of Chief
Engineer
(Civil),
one
post
of
Superintending Engineer (Civil), two post
of Executive Engineer (Civil) one post of
Deputy Director (Karya Adhikari), two
post of Engineer and two post of Karya
Adhikari was created. Rule 5 also stood
amended whereby for recruitment on the
post of Executive Engineer (Civil), the
same was to be made by promotion
through selection committee amongst
substantively appointed Engineer of Zilla
Panchayat Monitoring Cell who have
completed at least 7 years of service as
such on the first day of recruitment,
Superintending Engineering (civil) by
promotion through selection committee
from amongst substantively appointed
Executive Engineer of Uttar Pradesh Zila
Panchayat
Monitoring
Cell
Gazetted
Officers Cadre who have completed total
15 years of substantive service on the first
day of the year of recruitment including
minimum 6 years of service as Executive
Engineer followed by Chief Engineer
(Level-II), by promotion through selection
committee from amongst substantively
appointed Superintending Engineer on the
first day of selection year who have
completed a
total of 25 years of
substantive service Uttar Pradesh Zila
Panchayat
Monitoring
Cell
Gazetted
Officers Cadre. The fifth respondent
thereafter by virtue of an order dated
14.07.2023 was promoted on the post of
Superintending Engineer (Civil) in the pay
scale of Rs. 1,23,100-2,15,900 (Pay
Matrix Level 13) on probation till
31.08.2024 followed by an order on the
same day whereby he was assigned
additional charge of Chief Engineer
(Civil) (Level-II) without any monetary
benefits. The fifth respondent is stated to
superannuate on 31.08.2024.

6. The writ petitioner herein who
claims to be elected as a member of Zila
Panchayat, Etawah and continuing since
8 All. Sachin Yadav Vs. State of U.P. & Ors.
1277
July, 2021 has filed the present Public
Interest Litigation (Writ of Quo Warranto)
seeking following reliefs:

"A. Issue writ, order or
direction in the nature of Quo
Warranto
to
declare
the
appointment of respondent No.5
Shri Arvind Kumar Rai as Deputy
Director, Superintending Engineer
& Chief Engineer in the Uttar
Pradesh Zila Panchayat Monitoring
Cell, Lucknow as void ab initio.
B.
Issue
any
other
appropriate writ, direction and
order directing the respondents to
recover from respondent No.5 Shri
Arvind
Kumar
Rai
all
consequential benefits of the post
with retrospective effect that have
been extended to him by virtue of
his illegal appointments on the post
of Deputy Director, Superintending
Engineer and Chief Engineer in the
Uttar
Pradesh
Zila
Panchayat
Monitoring Cell, Cell, Lucknow.
C. Issue a writ, order or
direction which this Hon'ble Court
may deem just and proper in the
nature and circumstances of the
case.
D. To award the cost of the
writ petition."

7. The present writ petition was
entertained on 15.05.2024 while issuing
notice to the fifth respondent and seeking
response from the respondents.

8. A counter affidavit has been
filed by the State official respondents as
well as the Respondent No. 5 and
supplementary counter affidavit has also
been filed to which rejoinder affidavits
have been filed.
Argument of learned counsels for
the writ petitioner

9. Shri Rakesh Pandey, Senior
Advocate assisted by Shri Umesh Vats,
learned counsel for the writ petitioner has
sought to argue that the appointment of
fifth respondent, Arvind Kumar Rai as
Deputy Director, Superintending Engineer
& Chief Engineer in the Uttar Pradesh Zila
Panchayat Monitoring Cell, Lucknow is
void ab initio inasmuch as the entire
selection criteria has been tailored in order
to confer undue benefits upon him.
Elaborating the said submission, it is being
sought to be argued that the appointment of
the fifth respondent on the post of Engineer
in the Monitoring Cell was on Ad hoc basis
that too against a temporary post which was
to be in existence till 28.02.1993 from the
issuance of the Government order dated
30.03.1992. It is submitted that in the year
2004, the Uttar Pradesh Zila Panchayat
Monitoring Cell Gazetted Officers Service
Rules, 2004 came to be enforced and in
view of Rule 3(k), the appointment of the
fifth
respondent
by
no
stretch
of
imagination can be said to be legal as
appointment was made on ad hoc basis and
thus there was no question of making him
regular on 18.07.2006. It is also contended
that once the fifth respondent was made
regular on the post of Engineer (civil) on
18.07.2006 then, 8 years of substantive
service was required for being promoted on
the post of Deputy Director whereas on
25.02.2013 when the fifth respondent
granted promotion on the post of Deputy
Director, he did not have 8 years of
substantive service. It is also submitted that
on 10.04.2023, an office order came to be
issued for restructuring of the cadre
strength of various posts but there was no
post
sanctioned
as
Deputy
Director
(Technical) while converting the same as
1278 INDIAN LAW REPORTS ALLAHABAD SERIES
Executive Engineer (Civil) giving a room
to the fifth respondent thus, it is a classic
example of undue favouritism. It is also the
submission of learned Senior Counsel for
the writ petitioner that Rules were amended
in order to confer undue benefit to the fifth
respondent
whereby
the
post
of
Superintending Engineer (Civil) and post of
Chief Engineer (Civil) was created and
thereafter promotion was accorded to the
fifth respondent on 14.07.2023 on the post
of Superintending Engineer (Civil) and in
order to perpetuate illegality, a dedicated
avenue of promotion was created in favour
of the fifth respondent while giving him the
additional charge of Chief Engineer (Civil)
Level-II in order to promote him on regular
basis while dispensing with the minimum
working as Superintending Engineer (Civil)
while making it 25 years of substantive
service in the Zila Panchayat Monitoring
Cell Gazetted Officers Cadre. In nutshell,
the submission is that at different stages
manoeuvring and manipulating has been
done in order to give unjust benefits to the
fifth respondent as the Rules have been
framed in order to suit the circumstances
which would be in favour of the fifth
respondent. During the course of the
argument, a document has been forwarded
to the Court dated 23.08.2024 whereby
charge has been handed over to the fifth
respondent on the post of Chief Engineer
(Civil) (Level II).

11. Reliance has also been placed
upon the judgement in the case of
Gambhirdan K. Gadhvi v. State of
Gujarat, 2022 (5) SCC 179, Professor
(Dr.) Sreejith P.S. v. Dr. Rajasree M.S.,
2022 (4) SCT 711 and the judgment in the
case of Premchandran Keezhoth and Ors.
v. The Chancellor Kannur University and
Ors., AIR 2024 SC 135 so as to contend
that a writ of quo warranto is maintainable,
in case, the appointment is void ab initio
and a person who is usurping the post has
no authority under law to hold the same. It
is, therefore, prayed that the writ petition be
allowed in toto and appointment of the fifth
respondent be set aside.

Argument of the learned counsel
for the respondent

12. Countering the submission of
the learned Counsel for the petitioner, Shri
Manish Goyal, learned AAG assisted by
Shri A.K. Goyal for the State-respondents
has sought to argue that the Public Interest
Litigation couched as writ of quo warranto
is
not
maintainable
since
the
fifth
respondent does not hold a public office. It
is also submitted that the present writ
petition is actuated by malicious intent
other than bona fide, particularly, in view
of the fact that the writ petitioner as per his
own saying is the member of the Zila
Panchayat, Etawah and being aggrieved
against the monitoring being done with
regard to the affairs of the Zila Panchayat it
became a basis for filing of the present writ
petition. Reliance has also been placed
upon the judgement in the case of B.
Srinivasa Reddy v. Karnataka Urban
Water
Supply
&
Drainage
Board
Employees' Assn. And Others, 2006 (11)
SCC 731, Central Electricity Supply
Utility of Odisha v. Dhobei Sahoo and
Others, 2014 (1) SCC 161 and Arun
Kumar Agrawal v. Union of India and
Others, 2014 (2) 609 so as to contend that
the
present
proceedings
are
not
maintainable at the behest of the writ
petitioner. On merits, it has been submitted
that the entire pleadings set forth in the writ
petition at the instance of the writ
petitioner, centres around favouritism and
manoeuvring in order to give undue
benefits to the fifth respondent, however,
8 All. Sachin Yadav Vs. State of U.P. & Ors.
1279
the records explicitly depicts that the
Monitoring
Cell
stood
created
on
administrative exigency on 30.03.1992
whereby besides the post of Engineer
various other posts were created followed
by the modalities, according to which,
selections were to be made for various
posts on 01.04.1992 and in the line with the
same, the fifth respondent after being
subjected to selection committee was
accorded appointment on the post of
Engineer on ad hoc basis on 17.10.1992
and on 14.10.1998, the temporary post
stood converted into regular and on
06.11.1998, a Government order also came
to be issued in that regard pursuant whereto
on 29.11.2000, the fifth respondent along
with others were made regular and post
enactment
of
the
2004
Rules
after
completing 8 years of service as Engineer,
the fifth respondent was promoted on the
post of Deputy Director on 25.02.2013.

13. Owing to the need for cadre
restructuring which is permissible in view
of Rule 4(1) of the 2004, Rules, the cadre
restructuring was done whereby consequent to
the surrendering of certain post, the post of
Executive Engineer, Superintending Engineer
(Civil) and Chief Engineer Level-II was
created and after the enforcement of Uttar
Pradesh Zila Panchayat Monitoring Cell,
Gazetted Officers (First Amendment), Rules
2023, the fifth respondent was granted
promotion post completion of 6 years of
service as Executive Engineer on the post of
Superintending Engineer (civil) on 14.07.2023
and since he was senior-most on the post on
completion of 25 years of substantive service
in the Monitoring Cell, he was assigned the
additional charge of Chief Engineer Level II
without any monetary benefits.

14. Submission is that in
absence of challenge to the Statutory
Rules/ Government Order/ Appointment
and promotion orders issued in favour of
the fifth respondent, the writ petitioner
cannot succeed, particularly, when the
orders and the Rules are intra vires and
within the competence of the State
Government issued in administrative
exigencies which is unquestionable.

15 . Additionally, it has been
argued that the fifth respondent is to
superannuate on 31.08.2024 and it is not
a case wherein the writ petitioner was
not aware about the movement of the
fifth respondent as he being the member
of the Zila Panchayat since 2021 cannot
be said to be ignorant in this regard.

16. Lastly, it has been contended
that it is the domain and the province of
the State Government to create avenues
from promotion and to accord placement
and once it is not the case of the writ
petitioner that the fifth respondent does
not possess eligibility/ qualification then
the
entire
challenge
sans
merit.
Therefore,
the
writ
petition
be
dismissed.

Argument of learned counsel for
respondent No. 5

17. Sri Shobhit Mohan Shukla
along with Sri Shashi Prakash Rai, have
adopted the arguments of learned AAG
while adding that there is no illegality in
selection, appointment and promotion of
the fifth respondent on the post of
Engineer, Deputy Director, Superintending
Engineer and Chief Engineer (Level-II). It
is also submitted that whatever benefits
have been extended to the fifth respondent
they are as per the statutory rules and the
Government Orders issued from time to
time and in absence of challenge to the
1280 INDIAN LAW REPORTS ALLAHABAD SERIES
same, the writ petitioner is not entitled for
any relief.

18. Before delving into the
tenability of the arguments of the rival
parties, it would be apposite to quote the
Government Order/office order and the
statutory rules:

Statutory Rules/ Documents
"Uttar Pradesh Zila Panchayat
Monitoring
Cell
Gazetted
Officer's
Service Rules, 2004"
3. Definitions- In these rules,
unless there is anything repugnant in the
subject or context-
(h) - Member of the Service' means
a person substantively appointed under
these rules or the rules or orders in force
prior to the commencement of these rules
to a post in the cadre of the service;
(k) Substantive appointment' means
an appointment, not being an ad hoc
appointment, on a post in the cadre of the
service, made after selection in accordance
with the Rules and, if there were no rules,
in
accordance
with
the
procedure
prescribed for the ime being by executive
instructions issued by the Government;
Cadre of Service. - (1) The
strength of the service and each category of
posts therein shall be such as may be
determined by the Government from time
to time.
(2) The strength of the service and
of each category of posts therein shall, until
orders varying the same are passed under
sub-rule (1), be as given below:

SI
.
N
o.
Name of
Post
Number of Posts
Perman
ent
Tempor
ary
Tot
al
1.
Deputy
Director
3
-
3
2.
Engineer
2
-
2
3.
Karya
Adhikari
2
-
2
4.
Medical
Officer
(Allopathi
c
and
Ayurvedic
or
Homeopat
hic)
2
-
2

Provided that-
(i) the appointing authority may
leave unfilled or the Governor may hold in
abeyance any vacant post, without thereby
entitling any person to compensation; or
(ii) The Governor may create such
additional permanent o temporary post as
he may consider proper.
5.
Source
of
recruitment.
-
Recruitment to the various categories of
posts in the service shall be made from the
following sources:-
1) Deputy Director (i) 33-1/2 per
cent by promotion through the↑ Selection
Committee from
 amongst
substantively appointed Engineers who
have completed eight years
 service as such on
the first day of the year of recruitment.
(ii) 33-1/2 per cent by promotion through
the Selection Committee from amongst
substantively appointed Karya Adhikari
who have completed eight years service as
such on the first day of the year of
recruitment.
(iii) 33-1/2 per cent by promotion through
the Selection Committee from amongst
substantively appointed Medical Officers
(Allopathic
and
Ayurvedic
or
Homeopathic) who have completed eight
years service as such on the first day of the
year of recruitment.
8 All. Sachin Yadav Vs. State of U.P. & Ors.
1281
(2) Engineer By direct
recruitment through the Commission.

The Utter Pradesh Zila
Panchayat Monitoring Cell Gazetted
Officers (First Amendment) Service
Rules, 2023

4.(1) The strength of service and
each category of posts therein shall be such
as may be determined by the Government
from time to time.
(2) The strength of service and each
category of posts therein shall, until orders
varying the same are passed under sub nule
(1), be as given below:

SI
.
N
o.
Name
of
Post
Number of Posts
Perman
ent
Tempor
ary
Tot
al
1.
Chief
Engineer
(civil)
-
01
01
2.
Superinten
ding
Engineer
(civil)
-
01
01
3.
Executive
Engineer
(Civil)
01
-
01
4.
Deputy
Director
(Karya
Adhikari)
01
-
01
5.
Engineer
02
-
02
6.
Karya
Adhikari
02
-
02

Provided that-
(i) the appointing authority may
leave unfilled or the Governor may hold in
abeyance any vacant post without thereby
entitling any person to compensation; or
(ii) the Governor may create such
additional permanent or temporary post as
he/she may consider proper.
5. Recruitment to the various
category of posts in the service shall be
made from the following sources:-
(1) Karya Adhikary - By direct
recruitment through the Commission.
(2)
Engineer
-
By
direct
recruitment through the Commission.
(3)
Deputy
Director
-
By
promotion
through
the
Selection
Committee from amongst substantively
appointed Karya Adhikaris who have
completed eight years service as such on
the first day of the year of recruitment.
(4) Executive Engineer (Civil) -
By
promotion
through
the
Selection
Committee from amongst substantively
appointed Engineers of Zila Panchayat
Monitoring Cell, who have completed at
least seven years service as such on the first
day of the year of recruitment.
(5)
Superintending
Engineer
(Civil) - By promotion through the
Selection
Committee
from
amongst
substantively
appointed
Executive
Engineers of Zila Panchayat Monitoring
Cell Gazetted Officer Cader, who have
completed Total fifteen years substantive
service on the first day of the year of
recruitment including minimum six years
service as Executive Engineer.
(6) Chief Engineer (Civil) (levelII) - By promotion through Selection
Committee from amongst the substantively
appointed Superintending Engineers on the
first day of selection year, who have
completed a total of 25 years of substantive
service in the Zila Panchayat Monitoring
Cell Gazetted Officer Cader."
संख्याः 5446/33-2-98-83जी/91
प्रेिक,
डा० ओम प्रकार्,
1282 INDIAN LAW REPORTS ALLAHABAD SERIES
सबचव,
उिर प्रदेर् र्ासन।
सेवा में,
उप सबचव/ प्रिारी अबिकारी,
बजिा पंचायत अनुश्रवण कोष्ठक,
पंचायती राज बविाग,
उ०प्र० र्ासन।
पंचायती राज अनुिाग-2 िखनऊः

बदनांक 06 नवम्िर, 1998
बवियः- बजिा पंचायत अनुश्रवण कोष्ठक, पंचायती राज
बविाग, उ०प्र० र्ासन के अन्तगशत अस्थायी पदों का स्थायीकरण।
महोदय,
उपयुशक्त बविय पर मुझे आपसे यह कहने का
बनदेर्/बनदेर् हुआ है बक श्री राज्यपाि महोदय बजिा
पंचायत अनुश्रवण कोष्ठक, पंचायती राज बविाग,
उ०प्र० र्ासन के अन्तगशत संिग्नक में उबल्िबखत
अस्थायी पदों को बदनांक 14-10-98 से स्थायी पदों
में पररवबतशत बकये जाने की सहिश स्वीकृबत प्रदान करते
हैं।
2- उक्त पदों के पदिारकों को र्ासन द्वारा
समय-समय पर जारी बकये गये आदेर्ों के अनुसार
मंहगाई एवं अन्य ििे, जो अनुमन्य हो, िी देय होंगे।
3. मुझे यह िी कहने का बनदेर्/बनदेर्
हुआ है बक उक्त अस्थायी पदों के बदनांक 14-1098 से स्थायी पदों में पररवबतशत हो जाने के फिस्वरूप
संिग्नक के कािम-6 में उबल्िबखत र्ासनादेर् संख्या
4181/33-2-98-83जी/91 बदनांक 27 अगस्त,
1998 को बजसमें इन पदों को विश 1998 में बदनांक
28-2-99 तक अस्थायी रूप से चिते रहने की
स्वीकृबत प्रदान की गयी थी, इस सीमा तक संर्ोबित
माना जायेगा बक उक्त पदों की बनरन्तरता केवि बदनांक
28-2-99 तक के बिये दी गयी थी।
उपयुशक्त पदों पर होने वािा व्यय आयव्ययक के अनुदान संख्या-14 के अन्तगशत िेखा र्ीिशक
2515-अन्य ग्राम्य बवकास कायशक्रम-आयोजनेिर101-पंचायती राज-800-अन्य व्यय-06-बजिा
पंचायत अनुश्रवण कोष्ठक की सुसंगत प्राथबमक इकाईयों
के नामे डािा जायेगा।
प्रमाबणत बकया जाता है बक इन पदों का
स्थायीकरण कायाशिय-ज्ञाप संख्याःए-2-797/दस87-24(12)-86 बदनांक 25 मई, 1987 में
बनबहत सिी र्तों की पूबतश के िाद बकया जा रहा है।
िवदीय
ह०
( डा० ओम प्रकार्)
सबचव।
उिर प्रदेर् र्ासन
पंचायती राज अनुिाग-2
सं०- 4445/33-2-200083जी/91
िखनऊः बदनांकः 29 नवम्िर, 2000

कायाशिय ज्ञाप

बजिा पंचायतों की बविीय एवं िौबतक
उपिबब्ियों की समीक्षा करने, उन पर प्रिावी बनयन्त्रण
रखने एवं बजिा पंचायतों का सुदृढीकरण बकये जाने के
उद्देश्य से र्ासनादेर् संख्या 1969िी / 33-2-9283जी/91, बदनांक 30.03.1992 द्वारा सबचव,
पंचायती राज के प्रर्ासकीय बनयन्त्रणािीन बजिा
पंचायत अनुश्रवण कोष्ठक का गठन बकया गया था। इस
र्ासनादेर् के अन्तगशत सृबजत पदों को र्ासनादेर्
संख्या 5446/33-2-90-83जी/91, बदनांक 06
नवम्िर, 1998 द्वारा स्थायी बकया जा चुका है। र्ासन
के कायाशिय ज्ञाप संख्या 1995िी/ 33-2-9283जी/91, बदनांक 01 अप्रैि, 1992 द्वारा जारी
कायशकारी आदेर्ों के अन्तगशत बवबिन्न पदों पर कोष्ठक
के बनयुबक्त बकये गये बनम्नबिबखत अबिकाररयों एवं
कमशचाररयों को उनकी दीघशकािीन संतोिजनक सेवाओं
को दृबष्टगत रखते हुए नीचे अंबकत सूची के कािम-3 में
अंबकत पदों पर तात्काबिक प्रिाव से स्थायी बकया
जाता है। ये अबिकारी/कमशचारी चूंबक कोष्ठक के बिए हैं
अतः इनकी बनयुबक्त/तैनाती केवि कोष्ठक के बिए ही
रहेगी।
उिर प्रदेर् बजिा पंचायत अनुश्रवण कोष्ठक
की समाबप्त पर यह पद स्वतः समाप्त हो जायेंगे।

क्र०सं० अबिकारी/कमशचारी
का नाम
द
नाम

1
श्री अरबवन्द कुमार अबियन्ता
8 All. Sachin Yadav Vs. State of U.P. & Ors.
1283
राय
2
श्री प्रवीण कुमार
अबियन्ता
3
श्री प्रदीप कुमार
गुप्ता
कायश अबिकारी
4
श्रीमती
पुष्पिता
पािीवाि
कायश अबिकारी
5
श्री बवजय प्रकार्
श्रीवास्तव
वररष्ठ बिबपक
6
श्री कमिेर् चन्र
पाडडेय
वररष्ठ बिबपक
7
श्री सन्तोि कुमार
आर्ुबिबपक
8
श्री कृष्ण चन्र
चौिरी
आर्ुबिबपक
9
श्री राजेर् कुमार
आर्ुबिबपक
10
श्री राम सुखी
चपरासी

िवदीय
ह०
(िी०िी० बसंसह)
उप सबचव
व
Analysis

19. We have heard the learned
counsel for the parties and perused the
record carefully.

20. The facts are not in issue. It is
not in dispute that the Monitoring Cell
came to be created by virtue of the
Government Order dated 30.03.1992 for
reviewing the financial and the physical
achievements and to have control over the
Zila Panchayat. It is also not in dispute that
several posts stood created including the
post of Deputy Director (three in number)
and Engineer (two in number) respectively.
In
order
to
regulate
the
procedure
according to which selections are to be
made for various posts an office order came
to be issued on 01.04.1992 with respect to
various posts including Engineer (two
posts) to be filled through selection
committee amongst the candidates who
have to their credit their Bachelor of
Engineering (Civil).

21. Records reveal that the fifth
respondent faced the selection Committee
and he was accorded appointment on the
post of Engineer on ad hoc basis in the pay
scale of Rs. 2200-75-2800-ev-100-4000.
On 14.10.1998, the State Government
declared the post which were to be made
temporary pursuant to the Government
Order dated 30.03.1992 to be regular and a
Government Order also came to be issued
on 06.11.1998. On 29.11.2000, the fifth
respondent was made regular along with
the others on the post of Engineer
thereafter, the Uttar Pradesh Zila Panchayat
Monitoring Cells Gazetted Officer Service
Rules, 2004 came to be gazetted on
12.07.2004. A consequential order was
passed in favour of the fifth respondent on
18.07.2006 whereby the word "ad hoc
basis" was substituted with the word
'regular' implying that the fifth respondent
was made regular.

22. The bone of contention is
whether it was open for the State
Government to have made the fifth
respondent regular on 18.07.2006 post
enforcement of the Uttar Pradesh Zila
Panchayat
Monitoring
Cell
Gazetted
Officer Service Rules, 2004 on the face of
the provisions contained under Rule 3(k) of
Rules, 2004. Evidently, at the time when
the fifth respondent was appointed as
Engineer on ad hoc basis on 17.10.1992
against the temporary post created of
Engineer on 30.03.1992, there were no
statutory rules in force, meaning thereby,
that the selections and the condition of
services
were
to
be
governed
by
Government Orders issued from time to
time. Apparently, the posts which were
temporary in nature for a limited period till
1284 INDIAN LAW REPORTS ALLAHABAD SERIES
28.02.1993 vide Government Order dated
30.03.1992 was made permanent on
14.10.1998 which stands recited in the
Government Order dated 06.11.1998. The
fifth respondent prior to the enforcement of
the 2004 Rules was made regular on
29.11.2000. Though the Rule 3(h) defines
member of service, a person substantively
appointed under the rules or the rules or
orders in force prior to commencement of
the rules to the post in the cadre of the
service
and
Rule
3(k),
substantive
appointment means an appointment not
being an ad hoc appointment on the post in
the cadre of the service made after selection
in
accordance
with
the
procedure
prescribed for the time being by the
executive
instructions
issued
by
the
Government. However, the same would not
in any manner whatsoever invalidate any
proceedings or action taken by the State
Government
while
conferring
benefit
particularly when the 2004 rules came into
effect from 12.07.2004.

23. To put it otherwise, the law
does not contemplate vacuum as in case,
there is no statutory rules then the
Government Orders would govern the
condition of the services. As regards the
challenge raised to the promotion of the
fifth respondent on the post of Deputy
Director is concerned, the same is meritless
inasmuch once the appointment of the fifth
respondent on the post of Engineer
followed by according regular status has
not been questioned, then the benefits
which will flow from Rule 5(1) of the 2004
Rules, for promotion on the post of Deputy
Director after completing 8 years of service
as Engineer. The entire challenge has been
based upon the fact that the fifth respondent
was accorded regular status on 18.07.2006
and, thus, he did not complete 8 years of
substantive service while being accorded
promotion
as
Deputy
Director
on
25.02.2013. The said argument is fallacious
as the fifth respondent was accorded
regular status on 29.11.2000 and the said
document was not placed on record with
the writ petition, however, it stood
available on record only by means of a
counter affidavit filed by the Staterespondents treating the date 29.11.2000 as
the date of regular status accorded to the
fifth respondent, the natural consequences
would be that in view of Rule 5(1) of the
2004 rules the fifth respondent becomes
eligible for being promoted as Deputy
Director.

24. With regard to the submissions
advanced on behalf of the writ petitioner
that the promotion accorded to the fifth
respondent on the post of Superintendent
Engineer (Civil) is tailor made just in order
to give undue benefits while framing the
rules to suit him is also thoroughly
misplaced particularly when the State
Government in terms of Rule 4 of the 2004
rules is competent to re-structure the cadre
while varying the cadre strength of
different post. It is not necessary that Rules
are to be framed, however, the same can be
done through administrative Orders as the
same is an exigency which is required as
and when the same stands occasioned. On
10.04.2023 an office order came to be
issued by the State Government whereby
for the various posts Executive Engineer
and Chief Engineer Level-II cadre restructuring was done whereby the post of
Deputy Director (Technical) was converted
into the post of Executive Engineer (Civil)
and two posts of Medical Officer and one
post of Deputy Director, Medical Officer
was surrendered and in its place a post of
Superintendent Engineer (Civil) and Chief
Engineer (Level-II) was created. Since the
fifth
respondent
had
to
his
credit
8 All. Sachin Yadav Vs. State of U.P. & Ors.
1285
substantive service of more than 15 years
as an Executive Engineer of the Zila
Panchayat
Monitoring
Cell
Gazetted
Officer cadre and out of which 6 years as
Executive Engineer, the fifth respondent
was accorded promotion as Superintendent
Engineer
(Civil)
on
14.07.2003
and
thereafter accorded additional charge as
Chief
Engineer
(Level-II)
without
monetary benefits in the wake of the fact
that he had 25 years of substantive service
in Zila Panchayat Monitoring Cell Gazetted
Officer as per the amendments made in the
Amendment Rules, 2023. Neither the 2004
rules nor the 2023 amendment rules have
been questioned in the present writ petition.
Nonetheless this Court is not required to
intervene and come to the rescue of the writ
petitioner particularly when there is no
challenge to the competency of the State
Government in issuing Government Orders
and the statutory rules in question.

25. As regards the contention
raised on behalf of the writ petitioner that
the office order dated 10.04.2023 speaks of
the post of Deputy Director (Technical) which
is not a sanctioned post is concerned, the same
is also of no merit particularly when the
factum of the creation of the post of Deputy
Director (Technical) stood noticed in the
proceedings initiated by the writ petitioner
questioning the promotion of one Sri Praveen
Kumar in Writ Petition No. 3966(S/B) of 2016
(Arvind Kumar Rai Vs. State of U.P. decided
on 04.10.2016 against which review is also
stood dismissed on 29.11.2018. This Court
does not find it appropriate to delve into the
said issue particularly when the issue
regarding the appointment of the fifth
respondent and claim for promotion as Deputy
Director stood noticed in the said writ petition.

26.