# Shivnandan Prasad Pandey & Ors v. State of U.P. & Ors

- **Citation:** (2020) 10 ILRA 480
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-03-30
- **Case number:** Service Single No. 24928 of 2019
- **Bench:** Devendra Kumar Upadhyaya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shivnandan-prasad-pandey-ors-v-state-of-u-p-ors-45358
- **Pages:** 11

## Headnote

A. Service Law - U.P. District Offices
(Collectorates) Ministerial Service Rules,
1980 - Rule 5 - U.P. District Offices
(Collectorates) Ministerial Service (Second
Amendment) Rules, 2011- Rule 5(ii)-
Recruitment/Appointment.
10 All. Shivnandan Prasad Pandey & Ors. Vs. State of U.P. & Ors.
481
The question before the Court was to consider
whether an employee, initially appointed on
the basis of the selection held for the post of
Seasonal Assistant Wasil Baqi Nawis (AWBN)
and has worked against the said post but has
been
subsequently
assigned
the
works
relating to other posts, will be eligible for
being considered for regular appointment in
terms of Rule 5(ii) of the amended Service
Rules or not. The provision as contained in
the amended Rule 5 provides that 50%
appointments against all category 'A' posts
shall be made by way of direct recruitment
and 30% category 'A' posts shall be filled in
by way of selection through the Selection
Committee amongst Seasonal AWBN, who
have worked for at least 4 fasli years on the
first day of the year in which the selection is
made. On perusal it is found that the
amended Service Rules do not confine the
regular appointment of Seasonal AWBN only
against the posts of AWBN; rather it expands
the scope of regular appointment of Seasonal
AWBN against various posts which are
ministerial in nature other than the post of
AWBN. Experience of having worked a
Seasonal AWBN for four fasli years does not
carry any rationale or nexus with the object of
making regular appointment on category 'A'
posts other than the post of AWBN and it
would defeat the purpose for which the Rule
was amended. The petitioners continued to
discharge the functions of other posts as
assigned to them from time to time though
they were initially appointed as Seasonal
AWBN on the basis of a selection held for the
said purpose are eligible to be considered for
regular appointment.(Para 22, 23, 25)

Writ Petition Allowed. (E-10)

List of Cases cited:-

## Text

480 INDIAN LAW REPORTS ALLAHABAD SERIES

11. The conduct of the petitioner
cannot be ignored. He had himself
voluntarily brought this fact to the notice of
Bank about false case against him a few
days before he was required to join on the
post of Probationary Officer. He also
approached the High Court. Taking all
these facts into consideration, the Bank
should have exercised its discretion in a
more reasonable manner to allow him to
join the post instead of depriving him of the
employment on the basis of some delay in
decision of the case which was beyond his
control.

12. It is true in similar circumstances
an employer is to take its decision. It is
solely its discretion. Once it is decided to
exercise
its
discretion,
it
must
be
reasonably exercised in the background of
circumstances of the case which may differ
from case to case. It is not meant to be said
that any indefinite and unreasonably long
time may always be granted. The fact
cannot escape notice that the Bank has not
shown any development in 5 months which
could cause hurdle in the way of the Bank
to permit him to join on the post.

13. It is to be noted that the petitioner was
found fit for the appointment after completion
of his training which the petitioner had
undergone as prescribed by the Bank. The
petitioner was actually appointed on the post of
Probationary Officer but unfortunately before
the date of joining a false case was registered
against the petitioner and the petitioner had very
honestly and voluntarily disclosed this fact to
the Authorities. The Bank did not decide to
deny the employment to the petitioner on the
ground of pendency of criminal case. It all
related to the question of time allowable to join.

14. In view of the discussion held
above, it is found that the Bank did not
consider the question of grant further time
to the petitioner to join in a reasonable
manner rather arbitrarily in the facts and
circumstances of the case. The impugned
orders
dated
30.03.2019
passed
by
Respondent No.3, impugned order dated
26.07.2018 passed by Respondent No.1 and
impugned order dated 19.06.2018 passed
by Respondent No.3 are quashed.

15. The respondent-Bank is directed
to permit the petitioner to join in pursuance
of letter of appointment dated 2.5.2017 on
the post of Probationary Officer within a
period of six weeks from the date of
downloaded copy of the order from the
website of the High Court is served.

16. The writ petition is allowed.
----------
(2020)10ILR A480
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.09.2020

BEFORE
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.

Service Single No. 24928 of 2019

Shivnandan Prasad Pandey & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Manish Singh

Counsel for the Respondents:
C.S.C.

A. Service Law - U.P. District Offices
(Collectorates) Ministerial Service Rules,
1980 - Rule 5 - U.P. District Offices
(Collectorates) Ministerial Service (Second
Amendment) Rules, 2011- Rule 5(ii)-
Recruitment/Appointment.
10 All. Shivnandan Prasad Pandey & Ors. Vs. State of U.P. & Ors.
481
The question before the Court was to consider
whether an employee, initially appointed on
the basis of the selection held for the post of
Seasonal Assistant Wasil Baqi Nawis (AWBN)
and has worked against the said post but has
been
subsequently
assigned
the
works
relating to other posts, will be eligible for
being considered for regular appointment in
terms of Rule 5(ii) of the amended Service
Rules or not. The provision as contained in
the amended Rule 5 provides that 50%
appointments against all category 'A' posts
shall be made by way of direct recruitment
and 30% category 'A' posts shall be filled in
by way of selection through the Selection
Committee amongst Seasonal AWBN, who
have worked for at least 4 fasli years on the
first day of the year in which the selection is
made. On perusal it is found that the
amended Service Rules do not confine the
regular appointment of Seasonal AWBN only
against the posts of AWBN; rather it expands
the scope of regular appointment of Seasonal
AWBN against various posts which are
ministerial in nature other than the post of
AWBN. Experience of having worked a
Seasonal AWBN for four fasli years does not
carry any rationale or nexus with the object of
making regular appointment on category 'A'
posts other than the post of AWBN and it
would defeat the purpose for which the Rule
was amended. The petitioners continued to
discharge the functions of other posts as
assigned to them from time to time though
they were initially appointed as Seasonal
AWBN on the basis of a selection held for the
said purpose are eligible to be considered for
regular appointment.(Para 22, 23, 25)

Writ Petition Allowed. (E-10)

List of Cases cited:-

1. Jiv Kumar Tiwari Vs St. of U.P. & ors. Writ
A No. 68698 of 2006

2. Grid Corporatio of Orissa Ltd. & ors. Vs,
Eastern Metals and Ferro Alloys & ors. (2011)
11 SCC 334 (followed)

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.)

1. Heard Shri Manish Singh, learned
counsel for the petitioners and learned
Additional
Chief
Standing
Counsel
representing the State-respondents.

2. At the outset, it has been informed
by the learned counsel for the petitioners
that petitioner No. 3-Ravindra Nath has
passed away without leaving any heir or
legal representative to pursue this writ
petition or in whose favour right to sue can
be said to survive. Accordingly, the writ
petition in respect of petitioner No. 3Ravindra Nath is hereby abated.

3. The petitioners, who are said to
have been initially appointed on the post of
Seasonal Assistant Wasil Baqi Nawis
(hereinafter referred to as, ''AWBN')
district
Sultanpur,
have
invoked
the
jurisdiction of this Court under Article 226
of the Constitution of India to challenge the
decision taken by the respondents whereby
their claim for regular appointment on the
post of AWBN has been rejected. The
petitioners had earlier filed a writ petition
bearing No. 8063 (S/S) of 2011 claiming
that they should be regularly appointed on
the post in question. The said writ petition
was finally disposed of by this Court, vide
its order dated 08.11.2011 with the
direction to the District Magistrate to
consider the representation to be preferred
by the petitioners in respect of their
grievances taking into account the relevant
rules and materials as also the judgment
dated 26.08.2011 rendered by this Court in
Writ A No. 68698 of 2006 (Jiv Kumar
Tiwari Vs. State of U.P. and others).

4. In compliance of the said order
dated 08.11.2011, the claim of the
petitioner for regular appointment was
considered by the District Magistrate, who
vide his order dated 31.12.2011 rejected the
482 INDIAN LAW REPORTS ALLAHABAD SERIES
same. The aforesaid order dated 31.12.2011
passed by the District Magistrate Sultanpur
came to be challenged by the petitioners in
Writ Petition No.749 (S/S) of 2012. The
said writ petition was allowed by this Court
vide
its
judgment
and
order
dated
12.09.2014 whereby the order impugned in
the said writ petition was quashed and the
District Magistrate was directed to examine
the case of the petitioners afresh for regular
appointment in terms of the order passed by
this Court in Jiv Kumar Tiwari's case
(supra).

5. Since in compliance of the said
order dated 12.09.2014, the decision was
not being taken by the authority concerned,
contempt proceedings were initiated by the
petitioners by filing Contempt Petition
No.93(C) of 2015. It is only once the
contempt petition was filed that the matter
was considered by the authorities in
compliance of the order dated 12.09.2014
passed by this Court, not once but thrice.
The first consideration appears to have
been made in a meeting held on 03.11.2018
under the chairmanship of Additional
District Magistrate (Finance and Revenue).
The said committee considered the claim of
the petitioners for regular appointment and
rejected the same. The minutes of the said
meeting held on 03.11.2018 have been
annexed as Annexure No.1 to the writ
petition. The authorities again considered
the matter relating to claim of the
petitioners for regular appointment in a
meeting of the officers held on 30.11.2018.
The
second
consideration
made
for
ensuring compliance of the judgment and
order dated 12.09.2014, however, also
resulted in rejection of the claim of the
petitioners. Minutes of the said meeting
dated 30.11.2018 are also on record as
Annexure No.2 to the writ petition. In the
meantime, the Special Appeal preferred by
the State Government against the judgment
and order
dated
12.09.2014
namely,
Special Appeal Defective No. 621 of 2018
was dismissed by a Division Bench of this
Court, vide its judgment and order dated
27.11.2018. It, thus, appears that matter
thereafter was again considered by the
Committee headed by the Additional
District Magistrate (Finance and Revenue).
It is relevant to point out that the said
meeting was held on 18.01.2019 after
dismissal of the Special Appeal by the
Division Bench of this Court on 27.11.2018
whereby the judgment and order dated
12.09.2014 passed by Hon'ble Single Judge
in Writ Petition No.749 (S/S) of 2012 was
affirmed.

6. Based on the minutes of the
meeting comprising of the officers headed
by Additional District Magistrate (Finance
and
Revenue),
dated 18.01.2019
the
District Magistrate again rejected the claim
of the petitioners. The minutes of the said
meeting dated 18.01.2019 are on record at
page No. 42 as part of the Annexure No. 3
appended to the writ petition. On the basis
of the said minutes dated 18.01.2019, an
order was passed by the District Magistrate,
Sultanpur on 25.05.2019 whereby one of
the writ petitioners in the earlier writ
petition, namely, Surendra Bahadur Singh
was given regular appointment, whereas
claim of the other persons, who are the
petitioners in the present writ petition,
namely, Shiv Nandan Prasad Pandey,
Musheer Ahmad and Ravindra Nath has
been rejected.

7. Amongst others, the primary
ground taken by the learned counsel for the
petitioners to assail the decision of the
respondents in rejecting the claim of the
petitioners
for
being
given
regular
appointment is that the reasons indicated in
10 All. Shivnandan Prasad Pandey & Ors. Vs. State of U.P. & Ors.
483
the impugned decision are erroneous and
hence not tenable and further that the
petitioners have wrongly been held to be
ineligible
for
being
given
regular
appointment in terms of the provisions
contained in Rule 5 of the U.P. District
Offices (Collectorates) Ministerial Service
Rules, 1980, amended vide Notification
dated 26.05.2011 by proclaiming U.P.
District Offices (Collectorates) Ministerial
Service (Second Amendment) Rules, 2011
(hereinafter referred to as, the "amended
Rules").

8. Learned counsel for the petitioners
has, thus, emphasized that if the reasons
indicated by the authority concerned while
rejecting the claim of the petitioners are
examined in the light of the correct
interpretation of the Rule 5 of the amended
Rules, the same would be held to be
unsustainable. His further submission is
that in terms of Rule 5, the petitioners
though
are
eligible
for
giving
substantive/regular appointment, yet they
have been denied their rightful claim even
after long litigation. He has also submitted
that the impugned decision, if examined
carefully, is not found in conformity with
the judgment dated 26.08.2011 rendered by
this Court in the case of Jiv Kumar Tiwari
(supra)

9. Vehementally opposing the prayer
made in this writ petition, the learned
Additional Chief Standing Counsel has
submitted that if the amended Rule 5 is
construed in correct perspective, there does
appear to be any illegality in the impugned
decision
whereby
the
claim
of
the
petitioners
for
being
given
regular
appointment has been rejected. He has
stated that since all the petitioners do not
have requisite experience of having worked
in the capacity of Seasonal AWBN for at
least 4 Fasli years hence, they have rightly
been rejected for being considered for
substantive/regular appointment in terms of
Rule 5 of the Service Rules. .

10. Learned State Counsel has also
raised an objection which may come in the
way of the petitioners being granted relief.
He stated that the order dated 25.05.2019
passed by the District Magistrate, Sultanpur
has not been challenged.

11. I have given my careful
consideration to the competing arguments
made by learned counsel for the respective
parties and have also perused the record
available on this writ petition.

12. What I find is that the fate of this
writ petition revolves around the correct
interpretation of Rule 5(ii) of the Service
Rules,
which
was
amended
vide
Notification dated 26.05.2011. Thus, the
construction of said Rule is pivotal for
decision in this case. The claim of the
petitioner
for
being
given
regular
appointment depends on consideration of
the said issue.

13. The conditions of the service
including recruitment/appointment against
various
ministerial
posts
in
the
Collectorates of U.P. including the post of
AWBN are governed by U.P. District
Offices (Collectorates) Ministerial Service
Rules, 1980 as amended, vide its Second
Amendment promulgated on 26.05.2011.

14. The position which existed prior
to the amendment effected on 26.05.2011
and position which emerged after the said
amendment has been elaborately dealt with
by this Court in the judgment dated
26.08.2011 rendered by this court in Jiv
Kumar Tiwari's case (supra).
484 INDIAN LAW REPORTS ALLAHABAD SERIES

15. As observed above, the present
case concerns itself with the regular
appointment on the post of AWBN from
amongst
Seasonal
AWBN.
Prior
to
amendment in Service Rules effected vide
notification dated 26.05.2011, there was no
provision of making regular appointment
from
amongst
the
Seasonal
AWBN,
however, by the amendment made in the
year 2011 a clear provision has been made
for making regular/substantive appointment
against various ministerial posts in the
Collectorates in the State of U.P. from
amongst
Seasonal
AWBN.
For
convenience Rules 5 of the Service Rules,
as
amended
vide
notification
dated
26.05.2011 is being quoted herein under:-

COLUMN-2
Rule as hereby substituted
5.Recruitment to the various categories of
posts, in the Service shall be made district
wise from the following sources :
Category ''A'

Junior
Assistant
which
term
includes
Assistant
Bill
clerk,
Ahalmad,
Naib
Nazir
(Grade
II),
Library
Clerk,
Assistant
Routine
Clerk,
Assistant
Revenue
Clerk,
Assistant
Revenue
Assistant
(I) Fifty percent by direct
recruitment.
(ii)
Thirty
percent
by
selection
through
the
Selection Committee from
amongst
Seasonal
Assistant
Wasil
Baqi
Navises who have worked
satisfactorily for at least
four fasli years on the first
day of the year in which
the selection is made:
Provided that the upper
age
limit
for
such
candidates
shall
be
relaxable by such number
of years for which they
have worked as Seasonal
Assistant Wasil Baqi Navis
in Fasli years :
(Grade III),
Assistant
English
Record
Keeper,
Assistant
Judicial
Assistant
(Grade-III),
Arms
FormsKeeper,
Appeal
Ahalmad,
Assistant
Record
Keeper,
Arrangers,
Weeders,
Copyist,
Assistant
Local
Bodies,
Syaha
Nawees,,
Suits
clerk,
Judicial
Moharrir,
Revenue
Moharir,
Kurk Ameen,
Assistant
Record
Keeper
(Indexer),
Town Clerk,
Typist, Land
Acquisition
clerk,
Assistant
Excise
Clerk, Stamp
Clerk,
Assistant
Record
Provided further that if
sufficient
number
of
eligible
and
suitable
candidates
are
not
available for selection, the
remaining posts shall be
filled by direct recruitment.
(iii) Twenty percent by
promotion from amongst
substantively
appointed
Group ''D' employees in
accordance with the Uttar
Pradesh
Subordinate
Offices Ministerial Group
''C' Posts of the Lowest
Grade
(Recruitment
by
Promotion) Rules, 2001, as
amended for time to time.
10 All. Shivnandan Prasad Pandey & Ors. Vs. State of U.P. & Ors.
485
Keeper
(Revenue),
Assistant
Record
Keeper
(Judicial),
Despatcher,
Assistant
Record
Keeper
(Lekhpal),
Political
Pension
clerk, Local
Bodies
Clerk,
Assistant
Commission
er's
clerk,
Cell
Clerk,
Junior clerk,
Assistant
Session
Clerk, Nazul
clerk,
Assistant
Moharrier
judicial),
Embossing
Clerk,
Junior
Clerk,
Freedom
fighters
Clerk,
Complaints
Clerk,
Assistant
General
Clerk, Small
Saving
Clerk,
Honarary
Court Clerk,
Auction
Clerk, Suits
Clerk
(Grade-II),
Mutation
Clerk,
Assistant
Record
Keeper,
Assistant
Wasil
Baqi
Navis,
Ceiling
Clerk,
Assistant
Chief
Revenue
Accountant,
Agriculture
Income Tax
Clerk,
government
Estate Clerk,
Money
Lending
Clerk,
Finance and
Revenue
Clerk, Mela
Clerk,
Assistant
Suits Clerk,
Ziladar
government
Estate
and
any
other
ministerial
posts in the
scale of pay
Rs.
520020200 (Pay
Band-1) with
Grade
Pay
Rs.1900.
486 INDIAN LAW REPORTS ALLAHABAD SERIES

16. A perusal of the aforequoted
amended Rule 5 of the Service Rules shows
that in the Collectorates in the State of
U.P., there are various posts in the
ministerial cadre including the post of
AWBN which are described as category ''A'
posts in the Service Rules. The provision as
contained in Rule 5 provides that 50%
appointments against all category ''A' Posts
shall be made by way of direct recruitment
and 30% category ''A' posts shall be filled
in by way of selection through the
Selection
Committee
from
amongst
Seasonal AWBN, who have worked
satisfactorily for at least 4 fasli years on the
first day of the year in which the selection
is made. It is , thus, clear that Seasonal
AWBN are entitled to be considered for
their regular appointment not only against
the posts of AWBN but also against the
various other category ''A' posts, which are
all ministerial in nature.
 (Emphasis by the Court)

17. It is thus explicit that the scope of
regular appointment of Seasonal AWBN is
not confined to the post of AWBN alone.
Seasonal AWBN, thus, are to be considered
for their regular appointment against various
posts other than the posts of AWBN as well.
In a way, the scope of substantive/regular
appointment from amongst Seasonal AWBN
gets enlarged by making Seasonal AWBN
eligible for being given regular appointment
in their 30% quota against the vacancies in
various posts including the posts of AWBN.
As observed above, it, thus, does not need
any elaboration that the Seasonal AWBN are
entitled to be considered for regular/
substantive appointment against various
ministerial posts as given and defined in Rule
5 as category ''A' posts.

18. Coming to the reasons indicated by
the District Magistrate, Sultanpur in his order
dated 25.05.2019 rejecting the claim of the
petitioner for regular appointment, it is found
that they have been held to be ineligible for
the only reason that they had not rendered
their services in the capacity of Seasonal
AWBN for at least four fasli years as is the
requirement under the amended Rules 5. No
other reason has been indicated in the said
order. The Committee in its meeting held on
18.01.2019 also does not give any reason
other than that the petitioners had not worked
for at least 4 fasli years in the capacity of
Seasonal AWBN hence, they have been held
to be ineligible for being considered for
regular appointment.

19. It is, thus, apparent that the
petitioners in the impugned decision have
been found to be ineligible not on account
of any other reason including the reason of
the petitioners being over age etc. It is to be
noticed, as submitted by learned counsel
for the petitioner, that the petitioners were
initially appointed as Seasonal AWBN
pursuant to the selection held for the said
purpose, which is clear from the interview
letter issued to one of the petitioners
namely,
Shivnandan
Pandey,
dated
01.08.1986 which has been annexed as
Annexure no. 5 to the writ petition whereby
the petitioner No.1 was required to appear
in interview on 09.08.1986. By such
interview letters, the petitioners were
required to undergo interview and after
being subjected to selection/interview, the
petitioners were appointed as Seasonal
AWBN. Annexure no. 6 appended to the
writ petition is the select list in which name
of the petitioners also figure. Thereafter
petitioners were appointed vide order dated
12.08.1986, which has been annexed as
Annexure no. 7 to the writ petition.
Similarly,
the
petitioner
no.
2
was
appointed, vide order dated 22.10.1988,
which has been annexed at page 56 of the
10 All. Shivnandan Prasad Pandey & Ors. Vs. State of U.P. & Ors.
487
writ petition. Pursuant to their selection and
appointment
orders,
the
petitioners
submitted their joining on the post of
Seasonal AWBN.

20. Learned counsel appearing for
the petitioners has taken the Court to
various orders whereby from time to time
additional works have been assigned to
the petitioners. These orders are available
at page 56, 58 and 60 to the writ petition.
Having worked as Seasonal AWBN on
their
appointment
on
the basis
of
selection held, the petitioners, depending
on the exigencies which arose in the
Collectorate and other related offices
under the District Magistrate, Sultanpur,
were assigned the work related to various
other posts i.e. the posts other than the
post of Seasonal AWBN. The work
assigned to the petitioners included the
work of
copyist,
bidder,
additional
copyist and election clerk. These facts are
not in dispute. Learned counsel for the
petitioners' contention is that having been
appointed on the basis of selection held
for the post of seasonal AWBN, the
petitioners
initially
worked
in
the
capacity of Seasonal AWBN, however,
depending on the exigencies which might
have
arisen,
these
petitioners
were
assigned the work relating to other posts
as well. In this view, his submission is
that even if the petitioners had not
worked for at least 4 fasli years in the
capacity of Seasonal AWBN, still they
are entitled to be considered for regular /
substantive appointment against one or
the other category ''A' posts in terms of
the provisions contained in the amended
Rule 5 of the Service Rules. Rule 5 (ii) of
the Service Rules as has been quoted in
the earlier part of the judgment according
to which, 30% category ''A' posts are to
be filled in by way of selection to be
made by the Selection Committee from
amongst the Seasonal AWBN.

21. According to the said Rule,
those Seasonal AWBN are eligible for
being considered for regular appointment
who have worked for at least four fasli
years.

22. The question which falls for
consideration of this Court at this
juncture is as to whether an employee,
initially appointed on the basis of the
selection held for the said purposes on the
post of Seasonal AWBN and has worked
against the said post but subsequently has
been assigned the works relating to other
posts,
will
be
eligible
for
being
considered for regular appointment in
terms of Rule 5(ii) of the amended
Service Rules or not.

23. It is trite in law that court while
interpreting any statutory provision cannot
either interpolate or intrapolate or substitute
or insert any word which is not available in
the statutory provisions. However, the Court
while giving a correct construction to any
statutory provision can always look into the
purpose for which such statutory rule is
made. It is to be noticed in this case that prior
to the amendment in the Service Rules
effected on 28.05.2011, there was no
provision
for
making
any
regular
appointment from amongst the Seasonal
AWBN, however, after the said amendment
came into force, Rule 5 provides that 30% of
category ''A' posts given in the said Rule are
to be filled in by way of selection through the
Selection Committee from amongst the
Seasonal AWBN. It is observed, at the cost of
repetition, that the provisions contained in
Rule 5 of the amended Service Rules do not
confine the regular appointment of Seasonal
AWBN only against the posts of Assistant
488 INDIAN LAW REPORTS ALLAHABAD SERIES
Wasil Baqi Nawis; rather it expands the
scope of regular appointment of Seasonal
Assistant Wasil Baqi Nawis against various
posts which are ministerial in nature other
than the post of AWBN. Had the Rule
confined regular appointment of Seasonal
AWBM against the posts of AWBN alone, it
could have been said in Rule 5 of the Service
Rules that for regular appointment as
AWBN, a candidate should have four years
service to his credit in the capacity of
Seasonal AWBN. The scope in Rule 5 for
regular appointment of Seasonal AWBN
stands enlarged and in its fold it encompasses
various posts for which experience of having
worked as Seasonal AWBN may not be
relevant. For example, for the purpose of
making appointment on regular basis against
the posts of Junior Assistant, Assistant Bill
Clerk, Ahalmad and various other category
''A' posts experience of having worked as
Seasonal AWBN will not be relevant. This
experience of having worked as Seasonal
AWBN can be said to be relevant only for the
purpose of making regular appointment
against the posts of AWBN. Thus, if the
provision contained in Rule 5 (ii) is construed
to mean that only those Seasonal AWBN will
be eligible for regular appointment against
category ''A' posts as detailed in Rule 5 itself,
who have at least four fasli years experience
in the capacity of Seasonal AWBN, the same
would not go in tune with the purpose for
which amended Rule 5 appears to have been
framed. The experience of work in the
capacity of Seasonal AWBN can be said to
have the nexus with the object of making
regular appointment only against the posts of
AWBN and not against other posts which
have been detailed as category ''A' posts in
Rule 5 of the Service Rules.

24. Experience of having worked as
Seasonal AWBN for four fasli years does
not carry any rationale or nexus with the
object of making regular appointment on
category ''A' posts other than the post of
AWBN. In the other words, in case any
Seasonal AWBN is to be considered for
regular appointment within the 30% quota
against the posts mentioned as category ''A'
posts, the services rendered by a person
who is initially appointed as Seasonal
AWBN but subsequently has been assigned
the work relating to other posts, will also be
eligible for being considered for regular
appointment.

25. So far as the facts of instant case
are concerned, there is no denial of the fact
that all the petitioners were initially
subjected to a selection for the purpose of
their appointment as Seasonal AWBN. It is
also not in dispute that these petitioners,
initially, were assigned the work of the post
of Seasonal AWBN, however, depending
on the exigencies which arose in the office
concerned, they performed their duties
relating to other posts such as the post of
copyist, additional copyist and election
elerk etc. It is also noticeable that before
assigning
these
petitioners
the
work
relating to other posts, no new selection
had taken place. The petitioners continued
to discharge the functions of other posts as
assigned to them from time to time though
they were initially appointed as Seasonal
AWBN on the basis of a selection held for
the said purpose.

26. Accordingly, I have no hesitation
to hold that for the purpose of regular
appointment against category ''A' posts
other than the posts of AWBN insistence of
the authority concerned for a candidate on
having worked for at least four fasli years
in the capacity of Seasonal AWBN is
legally not tenable. Rule 5(ii) of the Service
Rules as amended vide Notification dated
26.05.2011, in my considered opinion, is
10 All. Shivnandan Prasad Pandey & Ors. Vs. State of U.P. & Ors.
489
thus to be given this interpretation as the
purpose of said Rules was to make the
Seasonal AWBN eligible for regular
appointment not only against the posts of
AWBN
but
against
various
other
ministerial posts as have been given in
detail as category ''A' posts in Rule 5 itself.

27. It is needless to say that this Court
as also Hon'ble Supreme Court in various
pronouncements
have
held
that
any
interpretation of any statutory Rule may
depend upon the purpose for which the
statutory rule is made. The regard can be
had in this respect to the judgment rendered
by Hon'ble Supreme Court in the case of
Grid Corporation of Orissa Limited and
others Vs. Eastern Metals and Ferro
Alloys and others, reported in 2011 (11)
SCC, 334. Para 25 of the judgment in the
case of Grid Corporation of Orissa
Limited (supra) is extracted herein below:

"25. This takes us to the correct
interpretation of clause 9.1. The golden
rule of interpretation is that the words of a
statute have to be read and understood in
their natural, ordinary and popular sense.
Where however the words used are capable
of bearing two or more constructions, it is
necessary to adopt purposive construction,
to identify the construction to be preferred,
by posing the following questions: (i) What
is the purpose for which the provision is
made?(ii) What was the position before
making the provision? (iii) Whether any of
the constructions proposed would lead to
an absurd result or would render any part
of the provision redundant? (iv) Which of
the interpretations will advance the object
of the provision? The answers to these
questions will enable the court to identify
the purposive interpretation to be preferred
while excluding others. Such an exercise
involving ascertainment of the object of the
provision and choosing the interpretation
that will advance the object of the provision
can be undertaken, only where the
language of the provision is capable of
more than one construction. (See Bengal
Immunity Co. Ltd. v. State of Bihar - AIR
1955 SC 661 and Kanailal Sur v.
Paramnidhi Sadhukhan AIR 1957 SC 907
and
generally
Justice
G.P.Singh's
Principles of Statutory Interpretation, 12th
Edition, published by Lexis Nexis - pp 124
to 131, dealing with the rule in Haydon's
case (1584) 3 Co Rep 7a: 76 ER 637)".

28. In view of forgoing discussions
made herein above and on the basis of
doctrine of purposive interpretation, it is
held that what flows from Rule 5(ii) of the
Service Rules is that an employee initially
appointed as Seasonal AWBN having been
subjected to a selection for the said purpose
will be eligible to be considered for regular
appointment against category ''A' posts as
given in Rule 5 provided he has worked
satisfactorily for at least four fasli years.
However, his work experience cannot be
confined to working only against the post
of Seasonal AWBN. If such a person is
initially appointed as Seasonal AWBN but
is subsequently assigned the work relating
to other posts, his work experience on other
posts
for
the
purpose
of
regular
appointment under Rule 5 of the Service
Rules shall also be counted.

29. As regards the objection raised by
the learned counsel for the State that the
petitioners have not challenged the order
dated 25.05.2019, passed by the District
Magistrate, Sultanpur, it may only be
observed that said decision is based on the
minutes of the meeting of the Selection
Committee held on 18.01.2019. The order
dated 25.05.2019 by the District Magistrate
has been passed on the basis of minutes of
490 INDIAN LAW REPORTS ALLAHABAD SERIES
meeting of the said Larger Committee held
on 18.01.2019 and these minutes of the
meeting held on 18.01.2019 are under
challenge in this writ petition. Merely
because formal prayer for quashing of the
order dated 25.05.2019, passed by the
District Magistrate has not been made, will
not come in the way of the petitioners
being granted relief to which they are
otherwise entitled to. Moreover the court in
exercise of its jurisdiction under Article
226 of the Constitution of India can always
mold the relief in the interest of justice.
Thus, the said objection is overruled.

30. Resultantly, the writ petition is
allowed. The order dated 25.05.2019,
passed by the District Magistrate, minutes
of the meeting dated 18.01.2019, minutes
of the meeting dated 30.11.2018 and the
minutes of the meeting dated 03.11.2011
are hereby quashed.

31. The Selection Committee/District
Magistrate,
Sultanpur
is
directed
to
consider the case of the petitioner Nos. 1
and 2 for their regular appointment in terms
of Rule 5 of the Service Rules as amended,
vide Notification dated 26.05.2011 taking
into consideration the observations made
and the principles laid down hereinabove.
The consideration for regular appointment
of the petitioners shall be made within a
period of two months from the date of
production of a copy of this order. The
District
Magistrate/Members
of
the
Selection Committee is/are also directed to
be mindful of the fact that it is the third
round of litigation which has arisen out of
denial of rightful claim of the petitioners
and dispute is now to be given quietus.

32. The Court expects and hopes that
District
Magistrate/Members
of
the
Selection Committee shall abide by the
observations made in this judgment and
take a lawful decision within the time
which has been stipulated herein above.

33. In the facts of the case, there will
be no orders as to costs.
----------
(2020)10ILR A490
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.05.2020

BEFORE
THE HON'BLE PRAKASH PADIA, J.

WRIT - B No. 70097 of 2011

Mahipal Singh ...Petitioner
Versus
Board of Revenue, U.P. at Allahabad &
Ors. ...Respondents

Counsel for the Petitioner:
Sri S.S. Shukla, Sri Santosh Kumar Tiwari,
Sri Rajendra Kumar Pandey

Counsel for the Respondents:
C.S.C., Dr. M. Tandon

Civil Law - Limitation Act (36 of 1963) -
Section 5 - Condonation of delay -
"sufficient cause" - should receive liberal
construction so as to advance substantial
justice - in the absence of formal written
application for condonation of delay -
court should give an opportunity to
remove the defect & to file an explanation
for delay - moreover an application for
condonation of delay may be oral also - If
the explanation does not smack of mala
fides or it is not put-forth as part of a
dilatory strategy the court, delay may be
condoned - filing of the application for
condonation of delay is in the realm of
procedure - cannot be interpreted in such
a way so as to take away the right of the
parties (Para 23, 22)

Revision dismissed in default - Restoration
application filed after 10 months - recall