# Santosh Kumar v. State of U.P. and others

- **Citation:** (2010) 1 ILRA 264
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-03-30
- **Case number:** Civil Misc. Writ Petition No. 8314 of 2002
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/santosh-kumar-v-state-of-u-p-and-others-41585
- **Pages:** 4

## Headnote

Drivers Rule 1993-Regulation-petitioner
working as Drivers on daily wages basic
1 All] Santosh Kumar V. State of U.P. and others

265
since 1996-Regular post created on
5.3.1997-oral
termination
since
01.02.2002-working on in pursuance of
stay order-No right for regularisation-but
the Board of Revenue regularized 26
person
on
27.02.2002-considering
further development regarding process
of
regularization-necessary
direction
given-petitioner
is
still
working-no
question of disclosing to him.

Held: Para 12 & 13

It has also brought to the notice of the
Court through a supplementary affidavit
in W.P.No.8004 of 2002 Ram Sajeewan
Vs. State of U.P. and others that an order
has been passed by the Secretary, Board
of Revenue on 27.2.2002 whereby 26
persons have been extended the benefit
of regularisation who were working on
daily
wage
basis.
This
was
after
publishing a notice on 19.2.2002. These
two documents give an indication that
some process of regularisation of daily
wage was under taken by the Board of
Revenue.

## Text

264 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

D.I.G. to cancel the earlier appellate order
dated 24.11.1999.

6. Shri Sharma, learned counsel for
the respondents contends that this order
was
under
a
compulsory
situation,
inasmuch as, if the petitioner failed to
comply with the direction of the order of
the Appellate Authority, there was no
option but to cancel the appellate order
which has been done by the D.I.G.

7. I have heard learned counsel for
the parties and perused the affidavits
available on records. The appeal, which
was allowed in favour of the petitioner,
was a statutory appeal. The consequences
of the order in appeal was that the order
of dismissal had been set aside and the
petitioner will therefore be deemed to be a
member of the force. In such a situation,
even if it is presumed that he did not join
for duty, the option to the authority was to
proceed ex-parte against the petitioner in
an inquiry under the rules and then to pass
an order.

8. The Rules do not provide for
cancellation of the appellate order and the
order passed in appeal could not be
reviewed by the appellate authority. It
could have been set aside by a competent
authority or a court of law. The D.I.G.
was not possessed with any jurisdiction to
cancel an order merely on the ground that
the petitioner had not reported for duty
after passing of the order in appeal.

9. The appellate authority had
become functus-officio and it had no
jurisdiction to set aside an order passed in
a statutory appeal by an administrative
order. If an order has been passed in
exercising of a statutory power, the same
cannot be reviewed in exercise of
administrative powers. In the instant case,
the same D.I.G., who had allowed the
appeal of the petitioner, had no authority
to cancel the same. The entire exercise is,
therefore, without jurisdiction.

10. In my opinion, the order dated
14.02.2000 is not in conformity with law
and is patently illegal. The same is hereby
set aside.

11. It shall be open to the
respondents to proceed de-novo against
the petitioner as directed by the Appellate
Authority in the order dated 24.11.1999.

12. With the aforesaid observations,
the writ petition stands allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.03.2010

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 8314 of 2002

Santosh Kumar

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

Counsel for the Petitioner:
Sri A. Upadhyay
Sri Indra Raj Singh
Sri Mritunjay
Sri Namit Srivastava
Sri Ranjit Saxena
Sri Anil Kumar Sharma
Sri Narendra Mohan

Counsel for the Respondents:
C.S.C.

U.P. Government Servant Regulation of
Drivers Rule 1993-Regulation-petitioner
working as Drivers on daily wages basic
1 All] Santosh Kumar V. State of U.P. and others

265
since 1996-Regular post created on
5.3.1997-oral
termination
since
01.02.2002-working on in pursuance of
stay order-No right for regularisation-but
the Board of Revenue regularized 26
person
on
27.02.2002-considering
further development regarding process
of
regularization-necessary
direction
given-petitioner
is
still
working-no
question of disclosing to him.

Held: Para 12 & 13

It has also brought to the notice of the
Court through a supplementary affidavit
in W.P.No.8004 of 2002 Ram Sajeewan
Vs. State of U.P. and others that an order
has been passed by the Secretary, Board
of Revenue on 27.2.2002 whereby 26
persons have been extended the benefit
of regularisation who were working on
daily
wage
basis.
This
was
after
publishing a notice on 19.2.2002. These
two documents give an indication that
some process of regularisation of daily
wage was under taken by the Board of
Revenue.

13. The petitioner shall bring the
aforesaid facts to the notice of the State
Govt through the Secretary, Board of
Revenue
who
shall
forward
his
comments to the State Govt. for an
appropriate decision in the matter.
Case law discussed:
1996(7) SCC 562.

(Delivered by Hon'ble A.P. Sahi, J.)

1. Heard Sri Narendra Mohan
learned counsel for the petitioner and the
learned standing counsel.

The petitioner contends that he is
entitled for being regularised on the post
of Driver and that the oral order of
termination passed by the authority not to
discharge duty w.e.f. 1.2.2002 is illegal.
The writ petition was entertained and an
interim order was passed on 24.5.2002
calling upon the respondents to either
permit the petitioner to continue to work
in the same capacity as he has been
engaged earlier or to show cause.

2. A counter affidavit has been filed
and it has been admitted that the
petitioner had been prevented from
discharging his duties w.e.f. 1.2.2002.
However, in view of the interim order
passed by this Court the Member
Secretary, Board of Revenue passed an
order dated 9.7.2002 for re-engaging the
petitioner as he was continuing earlier and
he has been paid allowances on daily
wage basis.

3. Sri Narendra Mohan learned
counsel for the petitioner contends that
the petitioner was engaged in the year
1996 and regular posts in the Department
were created subsequently vide order
dated 5.3.1997. Sri Mohan contends that
in view of the Regularisation Rules, 2001
the petitioner's claim should have been
considered
for
regular
appointment
inasmuch as he was entitled to the post if
he fulfills the eligibility conditions as
prescribed therein.

4. The counter affidavit recites that
the status of the petitioner was that of a
daily wager and not of an adhoc
employee, therefore he was not entitled
for
any
regularization.
Nonetheless
through a communication dated 13.8.2000
the
Registrar,
Board
of
Revenue,
Allahabad has been informed by the
Secretary, Board of Revenue that so far as
the regularization of daily wagers is
concerned, a proposal has been sent to the
State
Govt
for
considering
their
regularization separately. As and when
such a proposal is approved the matter
shall be considered accordingly.
266 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

5. The counter affidavit relying on
the said letter recites that if any
substantive vacancy comes into existence
and if the proposal as mentioned above is
accepted by the State Govt. the claim of
the daily wages employees shall be
considered in accordance with law.

6. The claim of the petitioner in the
writ petition was to protect him only
against the oral order and the same was
granted by an interim order and the
respondents themselves proceeded to
engage the petitioner and are taking work
from him.

7. So far as the second prayer with
regard to regularization is concerned, it is
admitted position that the petitioner was
not appointed on adhoc basis but was
engaged on a muster roll as is evident
from Annexure 1 to the writ petition. In
this view of the matter the status of the
petitioner is clearly defined as a daily
wage employee and the status of a daily
wage employee has been considered and
has been explained by the Apex Court in
the case of State of H.P. Versus Suresh
Kumar Verma and another reported in
1996(7) SCC 562.

8. In view of the law laid down by
the Apex Court and the stand taken in the
counter affidavit the claim of the
petitioner for regularisation as a daily
wage employee in my opinion cannot be
considered under the 2001 Regularisation
Rules as claimed by the petitioner. At the
best if the State Govt. has any set of rules
for the regularisation of daily wagers the
same can be considered in case the
petitioner fulfills the criteria of eligibility
for such regulariation under any such
rules for the time being inforce.

9. From a counter affidavit it
appears that the proposal was made to the
State Govt. but there is nothing on record
to indicate any approval.

10. Apart from this there is a rule
known as U.P. Govt. Department Drivers
Service Rules, 1993. The said rules were
enforced after having been formulated
under Article 309 of the Constitution of
India much prior to the engagement of the
petitioner. The appointment to the post of
Driver after promulgation of the said rules
is therefore to be in accordance with the
rules which were already in existence.
The petitioner's engagement was made in
1996 and the post was created in 1997. It
is therefore clear that the appointment on
a clear vacancy could have been made
only in accordance with the said 1993
Rules and not otherwise. The said rules do
not make any room for any such
engagement as claimed by the petitioner.

11. However as already indicated
above since the department had made a
proposal for regularisation of daily wage
employees, the said question is yet to be
examined by the State Govt.. For this
purpose the petitioner may approach the
State Govt for the redressal of his
grievances.

12. It has also brought to the notice
of the Court through a supplementary
affidavit in W.P.No.8004 of 2002 Ram
Sajeewan Vs. State of U.P. and others that
an order has been passed by the Secretary,
Board of Revenue on 27.2.2002 whereby
26 persons have been extended the benefit
of regularisation who were working on
daily
wage
basis.
This
was
after
publishing a notice on 19.2.2002. These
two documents give an indication that
some process of regularisation of daily
1 All] Saurabh Dewana V. The State of U.P.

267
wage was under taken by the Board of
Revenue.

13. The petitioner shall bring the
aforesaid facts to the notice of the State
Govt through the Secretary, Board of
Revenue who shall forward his comments
to the State Govt. for an appropriate
decision in the matter.

14. In case the petitioner is still in
service on daily wage basis and the work
of the petitioner is still requires it will not
be necessary for the respondents to
disengage the petitioner.

15. With the aforesaid observations,
the writ petition is disposed of.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.03.2010

BEFORE
THE HON'BLE VIJAY KUMAR VERMA, J.

Criminal Misc. Application No. 8618 of 2010

Saurabh Dewana

...Applicant
Versus
The State of U.P.
 ...Respondent

Counsel for the Applicant:
Sri Tarun Kumar Malviya

Counsel for the Respondent:
A.G.A.

Code of Criminal Procedure-Code Section
482-cognigence taken by Magistrate-in
printed proforma-without application of
judicial mind-held- very unfortunatejudicial order-by filling up blanks on
printed proforma-not sustainable.

Held: Para 4

Certified copy of the impugned order of
taking cognizance is paper No. 45, which
shows that the said order has been
passed on the printed proforma by filing
up the blanks. The blanks on the printed
proforma appear to have been filled by
court
employee
and
the
learned
magistrate thereafter put his initial,
which shows non-application of judicial
mind in passing the said order. It is very
unfortunate that judicial order of taking
cognizance has been passed by the
learned magistrate by filling up blanks
on printed proforma. This type of order
has been held illegal by this Court in
Ankit case (supra). Hence the impugned
order is liable to be quashed on this
ground alone.
Case law discussed:
2009 (3) U.P. Crl. Rulings 427.

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

1. Heard learned counsel for the
applicant and AGA for the State.

2. By means of this application
under section 482 of the Code of Criminal
Procedure, (in short 'the Cr.P.C.')' order
dated 02.12.2009 (annexure-5) passed by
the ACJM court No. 3 Ghaziabad in
Criminal Case No. 3860 of 2009 has been
sought to be quashed. By the impugned
order cognizance has been taken on the
charge sheet in case crime No. 1144 of
2009 of P.S. Singhani Gate, Ghaziabad.

3. It is submitted by learned counsel
for
the
applicant
that
the
learned
magistrate did not apply his judicial mind
at the time of taking cognizance on the
charge-sheet and impugned order of
taking cognizance has been passed on
printed
proforma,
which
is
not
permissible in law. For this submission
attention of the Court has been drawn
towards the case of Ankit vs. State of