# Shafique Ahmed v. State of U.P. & Ors

- **Citation:** (2025) 3 ILRA 302
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-03-11
- **Case number:** Writ - A No. 6586 of 2024
- **Bench:** Prakash Padia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shafique-ahmed-v-state-of-u-p-ors-53062
- **Pages:** 9

## Headnote

(A) Service Law - Non-government aided
minority Institution - Education - U.P.
Non-Government
Arabic
and
Persian
Madarsa
Recognition
Rules,
1987
(amended 2016) - Rule 8 of Government
Order dated 29.01.1996 (creation of posts
requiring State approval) - Validity of
withdrawal
of
financial
approval
for
appointment/promotion of a teacher in a
Madarsa - Approval granted 30 years ago
cannot be withdrawn on the ground that
the
post
was
not
created
by
the
Competent Authority.(Para -23)

Petitioner served as Assistant Teacher Tahtania
since 1988 - receiving salary from State
Exchequer since 1995 - Promoted to Assistant
Teacher Fauquania in 2021 - financial approval
granted but salary withheld - Respondent No. 2
withdrew
financial
approval
citing
nonsanctioned
post
creation
without
State
Government permission. (Para - 4 to14)
HELD:
-
Petitioner
was
entitled
to
all
consequential benefits. Approval had been
granted 30 years ago and could not be
3 All. Shafique Ahmed Vs. State of U.P. & Ors.
303
withdrawn on the ground that the post had not
been created by the competent authority.
Petitioner had not been at fault, and there was
no mention of fraud or malpractice against the
petitioner, who had served for about 30 years.
Impugned order was quashed. (Para -21,23,24)

Petition allowed. (E-7)

List of Cases cited:

## Text

302 INDIAN LAW REPORTS ALLAHABAD SERIES
case where the candidate took admission
through the Common Entrance Test during
2004-2005, he was permitted to appear in
the first semester examination, he was not
found guilty of any suppression or
misrepresentation of facts and though he
was informed about his ineligibility after he
took admission in the first semester
examination, he was permitted to continue
course and completed the same in 2007.
The University had earlier cancelled the
admission of the candidate which was
challenged before the High Court. The writ
petition was allowed by the Punjab and
Haryana High Court and the Hon'ble
Supreme Court, after placing reliance upon
Shri Krishnan (supra) and Sanatan
Gauda (supra) found the action of the
University withholding the result on
account of candidate's ineligibility as
unjust and, accordingly, disposed of the
matter in favour of the candidate.

24. In Sanatan Gauda (supra), the
candidate was admitted in the law college,
he was pursuing his studies for two years
and was permitted to appear in the
concerned examinations and it was only at
the stage of declaration of his result that the
University raised an objection qua his socalled ineligibility to be admitted to the
course. The matter was decided by the
Hon'ble Supreme Court in favour of the
candidate and against the University and
even a direction was issued to the
University authorities to frame rules in
clear terms so as to avoid multiple
interpretations of a rule which may entail
cost in terms of several years of life of a
student. Ashok Chand Singhvi (supra) is
also an authority of the Supreme Court on
the same lines.

25.
In
view
of
the
above
discussion, we do not find any error in the
order
of
the
learned
Single
Judge.
Consequently, the appeal fails and is,
accordingly, dismissed.
----------
(2025) 3 ILRA 302
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.03.2025

BEFORE

THE HON'BLE PRAKASH PADIA, J.

Writ - A No. 6586 of 2024

Shafique Ahmed ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Gaurav
Gautam,
Krishna
Kant
Vishwakarma, Rajesh Kumar Singh

Counsel for the Respondents:
C.S.C., Pranav Mishra

(A) Service Law - Non-government aided
minority Institution - Education - U.P.
Non-Government
Arabic
and
Persian
Madarsa
Recognition
Rules,
1987
(amended 2016) - Rule 8 of Government
Order dated 29.01.1996 (creation of posts
requiring State approval) - Validity of
withdrawal
of
financial
approval
for
appointment/promotion of a teacher in a
Madarsa - Approval granted 30 years ago
cannot be withdrawn on the ground that
the
post
was
not
created
by
the
Competent Authority.(Para -23)

Petitioner served as Assistant Teacher Tahtania
since 1988 - receiving salary from State
Exchequer since 1995 - Promoted to Assistant
Teacher Fauquania in 2021 - financial approval
granted but salary withheld - Respondent No. 2
withdrew
financial
approval
citing
nonsanctioned
post
creation
without
State
Government permission. (Para - 4 to14)
HELD:
-
Petitioner
was
entitled
to
all
consequential benefits. Approval had been
granted 30 years ago and could not be
3 All. Shafique Ahmed Vs. State of U.P. & Ors.
303
withdrawn on the ground that the post had not
been created by the competent authority.
Petitioner had not been at fault, and there was
no mention of fraud or malpractice against the
petitioner, who had served for about 30 years.
Impugned order was quashed. (Para -21,23,24)

Petition allowed. (E-7)

List of Cases cited:

1. Radhey Shyam Yadav & anr. Vs St. of U.P. &
ors. , A.I.R. 2024 SC 260

2. Shivanandan C.T. & ors. Vs High Court Kerala
& ors., (2023) SCC Online SC 994

3. Rajesh Kumar & ors. Vs St. of Bihar & ors.,
(2013) 4 SCC 690

(Delivered by Hon'ble Prakash Padia, J.)

1. Heard learned counsel for the
petitioner, learned Standing Counsel for
respondent Nos.1 & 3 and Sri Pranav
Mishra, learned counsel for respondent
No.2.

2. With the consent of learned
counsel for the parties, the present petition
is being decided at the admission stage
itself.

3. The petitioner has preferred the
present
petition
with
the
following
prayers:-

 (I) issue a writ, order of direction
in the nature of certiorri quashing the
impugned order dated 28.03.2024 passed
by
respondent
Registrar/Inspector
(contained in Annexure No.1 to writ
petition);

 (II) issue a writ, order of
direction in the nature of mandamus
directing the respondents to continue to
pay month to month salary to petitioner for
the post of Assistant Teacher Fauquania
Madarsa Jamia Alia Arabia Alianagar,
Mau;

 (III) issue a writ, order of
direction in the nature of mandamus
directing the respondents for payment of
arrears of difference of salary of the post of
Assistant Teacher Tahtania and Assistant
Teacher Fauquania alongwith adequate
interest;

4. Facts in brief as contained in the
writ petition are that the Madarsa Jamia
Alia Arabia Alinagar, Mau (hereinafter
referred to "Madarsa") is a non-government
aided
minority
Institution
imparting
education up to Class Fazil (graduation
Level). The Madarsa run and managed by a
society namely Jamila Alia Arabia, Mau
bearing Registration No.645/1982-83 dated
14.09.1982 and the same has been renewed
on 14.09.2019 for further period of five
years. The affair of the Madarsa in U.P.
including the services of teaching and nonteaching staff are being governed by U.P.
Non-Government
Arabic
and
Persian
Madarsa Recognition Rules, 1987 which
was later on amended in the year 2016.

5. The
Assistant
Director
of
Education (Basic) forwarded the list dated
29.11.1990, stating that there is 1 post of
Principal, 6 posts of Assistant Teacher Alia
(Matric), 1 post of Headmaster Fauquania
(Class 6 to 8), 3 posts of Assistant Teacher
Fauquania, 1 post of Headmaster Tahtania
(Class 1 to 5), 11 posts of Assistant
Teacher Tahtania I.e. 22 posts of teaching
staff and 5 non teaching staff, total 27 posts
were approved and working and getting
their salary.

6. In view of increased strength of
students,
respondent/Committee
of
304 INDIAN LAW REPORTS ALLAHABAD SERIES
Management proceeded with requested of
sanctioning
more
teaching
staff.
Considering the bonafide need of the
institution
Director
Urdu/Westem
Language Uttar Pradesh Lucknow vide
letter dated 28.9.1995 asked District Basic
Education Officer Mau to inquire into the
matter and submit report. In compliance of
the aforesaid directions, the District Basic
Education Officer, Mau inquired the matter
through Educational Superintendent Urban
Area,
Mau,
who
after
proper
proceeding/initiatives
recommended
7
posts of Assistant Teacher Alia and 14
posts of Assistant Teacher Tahtania in
madarsa. District Basic Education Officer,
Mau vide letter dated 20.2.1996 sent its
recommendation
to
the
Director
Urdu/Western Language, U.P. Lucknow for
necessary action.

7. Insofar as the present petitioner
is concerned, he was working in the
Institution in question on the post of
Assistant Teacher Tahtania since 1988 and
after the posts were sanctioned, he started
getting his salary from the State Exchequer
on the post of Assistant Teacher Tahtania
with effect from 1995. The Deputy Director
(Urdu), on behalf of Director (Urdu)
Lucknow
vide
order
dated
1.3.1996
directed the Basic Education Officer to do
the needful for payment of salary of 13
teachers of Tahtania. In the said list, the
name of the petitioner is also included. It is
further stated in paragraph 14 of the writ
petition that though the petitioner was
performing teaching work in the Madarsa
as Assistant Teacher in Tahtania with effect
from 1998 but he started getting his salary
from the State Exchequer in December,
1995.

8. It so happened one Imtiyaz
Ahmad Assistant Teacher Fauquania had
retired on 31.3.2021 on attaining the age of
superannuation. In order to fill up the
aforesaid post, proceedings for promotion
were initiated.

9. The petitioner being fully
qualified for his promotion on the post of
Assistant
Teacher,
Faukania,
the
Committee of Management promoted the
petitioner on the post of Assistant Teacher
Faukania and the petitioner joined his
promoted post on 20.06.2021. The papers
and documents of promotion on the post of
Assistant Teacher Faukania as well as the
appointment of Shameem Anwar on the
post of Assistant Teacher Tahtania was
forwarded by the Manager of the Institution
in question before the District Minority
Welfare Officer, Mau/respondent No.3 vide
letter dated 08.09.2021. The respondent
No.3 forwarded the aforesaid papers and
documents before the respondent No.2/
Registrar/Inspector,
U.P.
Madarsa
Education Board, Lucknow for financial
approval vide letter dated 13.09.2021. The
respondent
No.2
vide
order
dated
27.09.2021 granted financial approval in
respect of the promotion of the petitioner
on the post of Assistant Teacher Faukania
and the appointment of Shameem Anwar
on the post of Assistant Teacher Tahtania
from their date of joining. The relevant
portion of the aforesaid order reads as
follows:-

 "अतैः उपरोक्त स०अ० फौकादनया के पि पर
की गई पिोन्नदत एवां स०अ० तहतादनया के पि पर की गई
दनयुदक्त को साररणी में अांदकत दववरण के अनुसार उनके
कायाभार ग्रहण करने की दतदथ से वेतन भुगतान की सहमदत
दनम्नदलदखत शतो प्रदतबन्धों के अधीन प्रिान की जाती है"

10. It is argued by learned counsel
for the petitioner that in spite of the
aforesaid order, neither the petitioner was
3 All. Shafique Ahmed Vs. State of U.P. & Ors.
305
paid his salary for the post of Assistant
Teacher Faukania nor Shameem Anwar
was paid his salary on the post of Assistant
Teacher Tahtania.

11. Aggrieved by the inaction on
the part of the respondents, Shameem
Anwar approached this Court by filing Writ
A No.6429 of 2022 (Shameem Anwar Vs.
State of U.P. and others). The aforesaid
writ petition was disposed of by this Court
vide judgement and order dated 18.07.2022
directing the respondent No.2 to take a
final decision in the matter within three
months from the date of production of
certified copy of this order. Since the
aforesaid order was not complied with,
Contempt Application (Civil) No.6323 of
2023 was filed by Shameem Anwar which
was disposed of by this Court vide its order
dated 13.09.2023 granting one more
opportunity to the respondent No.2 to
comply with the order dated 17.08.2022.
Since the aforesaid order was also not
complied with, Shameem Anwar filed
another
Contempt
Application
(Civil)
No.278 of 2024.

12. After the order was passed by
this Court in the aforesaid contempt
application, the respondent No.2 passed the
order dated 02.02.2024 recalling his earlier
order dated 27.09.2021. By the aforesaid
order, financial approval granted in favour of
the petitioner and Shameem Anwar was
recalled. Aggrieved against the order dated
02.02.2024, Shameem Anwar filed Writ A
No.2745 of 2024. The said writ petition was
duly entertained and the effect and operation
of the order dated 02.02.2024 passed by the
respondent No.2 has been stayed by this
Court vide order dated 23.02.2024.

13. Pursuant to the aforesaid order,
an order was passed by the respondent
No.2 on 06.3.2023 directing the respondent
No.3 to comply with the order dated
23.02.2024 passed by this Court. Despite
the aforesaid order, the salary was not paid,
this
Court
passed
an
order
dated
14.03.2024 directing the respondent No.3
to appear before this Court. The respondent
No.3/District Minority Welfare Officer,
Mau appeared before the Court on
20.03.2025 and submitted his explanation.
The order dated 20.03.2024 passed by this
Court reads as follows:-

 1. The District Minority Welfare
Officer, Mr. Sahitya Nikash Singh has
appeared in person before this Court today
in compliance of order of the Court passed
on 14.03.2024 along with an application
seeking
exemption
from
appearance
supported by his personal affidavit.

 2. In the affidavit it is stated that
the Assistant Teacher, Tahtaniya namely
Shafiq Ahmad though was promoted as
Assistant Teacher, Faukaniya (Junior High
School) and approval was also granted but
he was not paid salary of promotional post,
rather he continued to received salary of
Assistant Teacher, Tahtaniya and the
question of promotion of Mr. Shafiq Ahmad
and his continuance upon a post earlier as
Assistant Teacher Tahtaniya is a matter of
adjudication pending before UP Madarsa
Education Board in which 22nd March,
2024 has been fixed and it is expected that
some final orders would be passed by the
Board.

 3. Plea taken is that so long as
Sri Shafiq Ahmad, Assistant Teacher,
Faukaniya is getting salary only as
Assistant Teacher, Tahtaniya though has
been
granted
financial
approval
as
Assistant Teacher, Faukaniya but petitioner
cannot be paid salary as two teachers
306 INDIAN LAW REPORTS ALLAHABAD SERIES
cannot be permitted to draw salary against
one post. The salary bill has been placed
before this Court of the institution in which
Sri Shafiq Ahmad is shown to have been
drawing salary as Assistant Teacher,
Tahtaniya.

 4. Counsel for petitioner has
sought to dispute the pleadings raised in
the compliance affidavit on the ground that
unless and until an appointment is set aside
even Sri Shafiq Ahmad was entitled to
receive
salary
of
Assistant
Teacher,
Faukaniya and if the respondent authorities
have failed to pay him salary and continued
to pay him salary as Assistant Teacher,
Tahtaniya, petitioner cannot be made to
suffer.

 5. Sri Rahul Malviya, learned
Standing Counsel, at this stage, submits
that it would be in the fitness of things
and appropriate also that question of
payment of salary is taken up again after
22.03.2024 on which date, the District
Minority Welfare Officer will be in a
better position to apprise the Court about
status of payment salary to the two
teachers.

 6. Let this matter be posted on
Board again on 16.04.2024 on which date
proper compliance affidavit shall be filed
in light of above observations.

 7. It is made clear that if by the
next date fixed, the Board fails to take any
decision, the salary of the petitioner will
not be held up any further whether Mr.
Shafiq Ahmad is paid salary of the post of
Assistant
Teacher,
Tahtaniya
or
Faukaniya, may be in the discretion of the
District Minority Welfare Officer but
certainly there will be no discretion vested
with the District Minority Welfare Officer
to withhold payment of salary of the
petitioner.

 8.
Personal
appearance
of
District
Minority
Welfare
Officer
is
dispensed with subject to his filing of
compliance affidavit in the given facts and
circumstances and the observations made
hereinabove.

14. After the aforesaid order was
passed by this Court, the respondent no. 2
passed the order impugned on 28.3.2024 by
which he held that the appointment of the
petitioner as Assistant Teacher Tahtania
was not against the sanctioned post, as
such, the financial approval granted to the
petitioner for the post of Assistant Teacher
Tahtania is withdrawn with immediate
effect. It is further ordered that the initial
appointment of the petitioner as Assistant
Teacher Tahtania was against the rules, as
such, the financial approval granted to the
petitioner for the post of Assistant Teacher
Fauquania is also withdrawn.

15. It is argued that the respondent
no. 2 has not recorded any findings as to
how the appointment of the petitioner as
Assistant Teacher Tahtania was against
non- sanctioned post. It is also argued that
the District Minority Welfare Officer in his
statement has clearly stated that the post
was created in the Madarsa in the year
1996, but at the time when the post was
created, there was a government order
dated 29.1.1996, by which it was provided
that for creation of post, permission of the
State Government is required. The learned
counsel for the petitioner submitted that the
petitioner has no role in creation of post in
the institution. There is no allegation that
either the petitioner or the Committee of
Management has played any fraud and has
appointed the petitioner against a non-
3 All. Shafique Ahmed Vs. State of U.P. & Ors.
307
sanctioned post. The only basis for passing
the impugned order is that the post was not
created with prior permission of the State
Government.

16. The learned counsel for the
petitioner has relied upon a judgment of
Apex Court passed in the case of Radhey
Shyam Yadav & another Vs. State of U.P.
& others reported in A.I.R. 2024 SC 260.
Relying on the aforesaid judgment, the
learned counsel for the petitioner submits
that as the appointment of the petitioner
was approved and he was getting salary
from December 1996 till February 2024
and financial approval to the appointment
of the petitioner was granted, as such, after
working for more than 30 years, the State is
stopped in law from withdrawing the
approval of appointment of the petitioner.

17. A counter affidavit has been
filed by the respondent nos. 2 & 3. Based
on the aforesaid counter affidavit, the
learned counsel for the respondents submit
that the State Government has issued a
government order dated 29.1.1996. In
paragraph
no.
8
of
the
aforesaid
government order, it is clearly mentioned
that the permission for creation and posts
will be made at the level of the
Government.
The
recommendation
of
District Basic Education Officer dated
20.2.1996 has been admitted by the
respondents in the counter affidavit. In
paragraph 8 of the counter affidavit it is
also admitted that after given approval on
13 posts of Assistant Teacher Tahtania, the
petitioner has started getting salary. The
submission of documents for promotion of
the petitioner is also admitted, however, in
paragraph no. 15, it is stated that the
approval to the promotion of the petitioner
on 27.9.2021 was granted with a condition
that before making payment of salary, it be
confirmed that the salary to only those
number of persons are being paid, who are
working against sanctioned post.

18. Heard learned counsel for the
parties. From perusal of the entire record, it
is
established
that
the
petitioner's
appointment as Assistant Teacher Tahtania
was approved and he was being paid his
salary from December 1996 till February
2024. The letter of Director, Urdu, U.P.
Lucknow dated 1.3.1996 is not being
disputed by the respondents. It is not the
case of the respondents that the petitioner
was appointed against sanctioned number
of post. The only contention of the
respondent is regarding the power to create
post, that the post can be created only with
approval of the State Government, whereas
in the present case, the post was created by
the Director Urdu, U.P. Lucknow without
prior permission of the State Government.

19. Thus, it is clear that neither the
Committee
of
Management
nor
the
petitioner has played any fraud in creation
of post. The post was created and payment
of salary to the petitioner and other
Assistant Teachers was being made from
State exchequer since December 1995 till
February 2024. In the impugned order, the
District Minority Welfare Officer has
raised only objection that the post was
created by the Director Urdu without prior
permission of the State Government. In the
impugned order, the only conclusion has
been recorded by the Registrar, respondent
no. 2 that the appointment of the petitioner
as Assistant Teacher Tahtania was not
against the post created by the State
Government. There is no whisper regarding
any fraud or misrepresentation being made
either by the petitioner or by the Committee
of Management in creation of post. The
Apex Court in case of Radhey Shyam
308 INDIAN LAW REPORTS ALLAHABAD SERIES
(supra) has affirmed the judgment of
Shivanandan C.T. & others Vs. High
Court Kerala & others reported in (2023)
SCC Online SC 994, wherein it was held
that even if the appointment of more than
advertised vacancy, after lapse of two
decades, the same should be protected.
Relevant paragraph 29 of the judgment is
as under:

 29. More recently, this Court in
Vivek
Kaisth
(supra),
following
the
judgment of the Constitution Bench in
Sivanandan C.T. and Others v. High Court
of Kerala and Ors., (2023) SCC OnLine SC
994 protected the appointments of the
appellants even after finding that their
appointments were in ex- cess of the
advertised vacancies. This Court held as
under:-

 "32........ Today, when we are
delivering this judgment the two appellants
have already served as Judicial Officers for
nearly 10 years. Meanwhile, they have also
been pro- moted to the next higher post of
Civil Judge (Senior Division). In this
process
of
their
se-
lection
and
appointment
(which
has
obviously
benefitted them), nothing has been brought
to our notice which may suggest any
favouritism, nepotism or so-called blame as
to the conduct of these two appellants, in
securing these appointments. The High
Court in fact notes this factor. While
placing the blame on the State Commission
it records that "..... there is nothing on
record suggestive of the fact that any mala
fides
were
behind
the
selection
of
respondents Nos.4 and 6....."

 "34. The appellants were not
entitled for any equitable relief in view of
the
High
Court
as
they
were
the
beneficiaries of an illegality committed by
the Selection/appointing authority. But then
it failed to take this question further, which
in our opinion, it ought to have done. What
the High Court never answered was as to
how much of this blame of "illegal"
selection and appointment would rest on
the High Court (on its administrative side).
Undoubtedly, with all intentions of timely
filling of the vacancies, the High Court still
can- not escape the blame....."

 "36. What is also important for
our consideration at this stage is that the
appellants e in the present case have been
working as Judicial Officers now for nearly
10 years. They are now Civil Judge (Senior
Division). These judicial officers now have
a rich experience of 10 years of judicial
service behind them. Therefore, unseating
the present appellants from their posts
would not be in public interest. Ordinarily,
these factors as we have referred above,
would
not
matter,
once
the
very
appointment is held to be wrong. But we
also cannot fail to consider that the
appellants were appointed from the list of
candidates who had successfully passed the
written examination and viva voce and they
were in the merit list. Secondly, it is
nobody's case that the appellants have been
appointed by way of favouritism, nepotism
or due to any act which can even remotely
be called as "blameworthy". Finally, they
have now been working as judges for ten
years. There is hence a special equity
which leans in favour of the appellants. In
a recent Constitution Bench decision of this
Court in Sivanandan C.T. and Ors. v. High
Court of Kerala and t Ors. (2023) SCC
OnLine SC 994 though the finding arrived
at by this Court was that the Rules of the
game were changed by the High Court of
Kerala by prescribing minimum marks for
the viva voce, which were not existing in
the Rules and therefore in essence the
3 All. Shafique Ahmed Vs. State of U.P. & Ors.
309
appointment itself was in violation of the
Rules, yet considering that those persons
who had secured appointments under this
selec- tion have now been working for more
than 6 years it was held that it would not be
in pubdlic interest to unseat them."
(emphasis supplied)

20. The Hon'ble Apex Court,
further held that when the appellants were
not party of post creation, they cannot be
blamed and suffer. Relevant paragraph 30
is as under:

 30. The situation of the appellants
in the present case is no different from the
individuals
whose
appointments
were
protected in the cases cited hereinabove.
They had no blameworthy conduct. They
were bona fide - applicants from the open
market.
The
alleged
mischief,
even
according to the State, was at the end of the
School and its Manager. It will be a
travesty of justice if relief is denied to the
appellants. Enormous prejudice would also
occur to them.

21. In the present case, the petitioner
was selected and appointed as Assistant
Teacher Tahtania against a post, which was
created in the institution. The post was
created by the Competent Authority or by an
incompetent person, the petitioner or the
Committee of Management of the institution
has no role in the said creation of post or
competence of the person of the authorities,
sanctioning the post. Relying upon the
documents of sanction of post, the State
Authorities have granted financial approval
and have made payment of salary to the
petitioner from December 1995. For last
about 30 years, there was no dispute or any
allegation that the petitioner was paid salary
against non-sanctioned post. It was open to
the Competent Authority, who granted
financial approval and started making
payment of salary to the petitioner from the
State exchequer to deny the financial
approval or payment of salary to the
petitioner in the year 1996 itself. The
authorities being fully satisfied that the
appointment of the petitioner is against the
sanctioned post, he had been continuously
getting his salary. Thus, the petitioner was not
at all in fault. There is no mention of fraud or
malpractice against the petitioner, who had
served for about 30 years.

22. The Honble Apex Court in case
of Rajesh Kumar & others Vs. State of
Bihar & others, reported in (2013) 4 SCC
690 has held that innocent party, even if in
revaluation do not make the grade, still the
appointments ought to be protected. Relevant
paragraph 21 is as under:

 21. There is considerable merit in
the sub- mission of Mr Rao. It goes without
saying that the appellants were innocent
parties who have not, in any manner,
contributed to the prepa- ration of the
erroneous key or the distorted result. There is
no mention of any fraud or malpractice
against the appellants who have served the
State for nearly seven years now. In the
circumstances, while inter se merit po-
sition may be relevant for the appellants,
the ouster of the latter need not be an
inevitable and inexorable consequence of
such a re- evaluation. The re-evaluation
process may additionally benefit those who
have lost the hope of an appointment on the
basis of a wrong key applied for evaluating
the
answer
scripts.
Such
of
those
candidates as may be ultimately found to be
entitled to issue of appointment letters on
the basis of their merit shall benefit by such
re-evaluation and shall pick up their
appointments on that basis according to
their inter se position on the merit list.
310 INDIAN LAW REPORTS ALLAHABAD SERIES
23. Thus, in view of the facts stated
above, the order impugned dated 28.3.2024
is illegal. The approval granted 30 years
ago, cannot be withdrawn on the ground
that the post was not created by the
Competent Authority.

24. The order impugned dated
28.3.2024 is hereby quashed. The petitioner
is entitled for all consequential benefits.
----------
(2025) 3 ILRA 310
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.03.2025

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ - A No. 10045 of 2020

Shivakar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Akash Khare, Hari Om

Counsel for the Respondents:
Abhishek
Srivastava,
Baleshwar
Chaturvedi,C.S.C.

Civil Law - Service Law - Back wages
during the period of imprisonment -
Principle
of
"no
work
no
pay"
-
Petitioner
was
imprisoned
from
23.01.2015
to
18.12.2018
after
a
criminal case was registered against him
under the Prevention of Corruption Act,
1988,
by
the
Anti-Corruption
Department on the complaint of a
private electricity consumer. Criminal
case was not instituted at the behest of
the
Corporation/employer.
By
the
impugned order, arrears of salary to the
petitioner
for
the
period
from
23.01.2015 to 18.12.2018 were declined
on the principle of "no work no pay."
Held: The principle of "no work no pay"
is subject to exception only in rare
instances, such as when an employer
prevents an employee from discharging
duties or creates impediments thereto.
In the instant case, the petitioner has no
lawful entitlement to back wages during
the period of his imprisonment. The
Corporation/employer neither created
any
hindrance
nor
prevented
the
petitioner from performing his duties.
Granting back wages in violation of the
principle of "no work no pay" would
amount to unjust enrichment of the
petitioner and an unfair loss to the State
exchequer. Prayer for grant of back
wages rejected; however, the petitioner
is entitled to continuity in service for the
said period for the purposes of pension.
(Para 11)
Dismissed. (E-5)
List of Cases cited:
1. Reserve Bank of India Vs Bhopal Singh
Panchal 1994 SCC (1) 541

2.
Ranchhodji
Chaturji
Thakore
Vs
Superintendent Engineer, Gujarat Electricity
Board, Himmatnagar (Gujarat) & anr. (1996) 11
SCC 603

3. U.O.I. & ors. Vs Jaipal Singh (2004) 1 SCC
121

4. Raj Narain Vs U.O.I & ors. (2019) 5 SCC 809

5. Anil Kumar Singh Vs St. of U.P. & ors. 2024
(6) ADJ 223

(Delivered by Hon'ble Ajay Bhanot, J.)

Ref:
Civil
Misc.
Correction
Application No.11 of 2025 Heard.

Correction application is allowed.

Necessary
correction
has
been
incorporated in the order dated 06.02.2025.
The correct order shall read as under: