# Shree Prakash Mishra v. State of U.P. and another

- **Citation:** (2009) 3 ILRA 772
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-09-14
- **Case number:** Civil Misc. Writ Petition No. 9826 of 1990
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shree-prakash-mishra-v-state-of-u-p-and-another-41451
- **Pages:** 4

## Headnote

Sri Srikant Shukla
S.C.

U.P.
Regularisation
of
Adhoc
Appointment
(on
post
outside
the
purview
of
the
Public
Service
Commission
Rules
1979-Rule
4Regularisation-appointed
on
post
of
Seasonal Clerk-extended from time to
time-recommendation for creation of
post-itself shows about working without
post-illegibility contained in Rule 10
declared irrational held-in view of law
laid down in Rakesh Kumar Saxena and
Take
Chand's
case-no
right
for
Regularisation.

Held: Para 6

It is well settled that in the absence of
any
post
neither
the
question
of
regularisation
nor
permanence
is
permissible. Besides the appointment
made for a fixed term or ad hoc
appointment does not confer any right
upon the incumbent concerned to claim
regularisation unless it is provided under
the statutory rules.
Case law discussed;
1989(1) UPLBEC 144, Civil Misc. Writ Petition
No. 20398 of 1988, Special Appeal No. (7) of
2008, 2007(4) ADJ 186, 2001 (1) AWC 287
(SC), Civil Misc. Writ Petition No.52755 of
2002 decided on 8.8.2003, 2006 (2) AWC

## Text

772 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

'service provider', they do not come
within the purview of the Act, hence the
impugned
order
being
without
jurisdiction, cannot sustain.

10. In the result, the writ petition
succeeds and is hereby allowed. The
impugned order dated 7.10.1994 passed
by
the
District
Consumer
Forum,
Azamgarh
is
accordingly,
quashed.
However, there shall be no order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.09.2009

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 9826 of 1990

Shree Prakash Mishra
...Petitioner

Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri D.S.M. Tripathi

Counsel for the Respondents:
Sri Srikant Shukla
S.C.

U.P.
Regularisation
of
Adhoc
Appointment
(on
post
outside
the
purview
of
the
Public
Service
Commission
Rules
1979-Rule
4Regularisation-appointed
on
post
of
Seasonal Clerk-extended from time to
time-recommendation for creation of
post-itself shows about working without
post-illegibility contained in Rule 10
declared irrational held-in view of law
laid down in Rakesh Kumar Saxena and
Take
Chand's
case-no
right
for
Regularisation.

Held: Para 6

It is well settled that in the absence of
any
post
neither
the
question
of
regularisation
nor
permanence
is
permissible. Besides the appointment
made for a fixed term or ad hoc
appointment does not confer any right
upon the incumbent concerned to claim
regularisation unless it is provided under
the statutory rules.
Case law discussed;
1989(1) UPLBEC 144, Civil Misc. Writ Petition
No. 20398 of 1988, Special Appeal No. (7) of
2008, 2007(4) ADJ 186, 2001 (1) AWC 287
(SC), Civil Misc. Writ Petition No.52755 of
2002 decided on 8.8.2003, 2006 (2) AWC
1738.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. List has been revised. None
appeared for the petitioner. Learned
Standing Counsel and Sri Srikant Shukla,
Advocate for the respondents are present.
However, I have perused the record.

2. The petitioner has sought the
following reliefs:

"(i) issue a writ, order, rule or direction
in the nature of writ of mandamus
directing the respondent no. 2 to treat the
services of the petitioner as permanent
being regularised and not to interfere in
the discharge of duty by the petitioner as
clerk.
(ii) issue a writ, order, rule or direction
in the nature of writ of mandamus
directing the respondent no. 2 to pass
formal order regularising the ad hoc
services of the petitioner.
(iii) issue a writ, order, rule or direction
in the nature of writ of mandamus
directing the respondent no. 2 to pay the
salary of the petitioner without any break
alongwith arrears forthwith.
(iv) issue any other writ, order, rule or
direction which this Hon'ble Court may
3 All] Shree Prakash Mishra V. State of U.P. and another

773
deem fit and proper in the circumstances
of the case.
(v) award the cost of petition."

3. The entire claim of petitioner is
that having worked for 240 days in a year
he is entitled to be treated as regular in
view of the law laid down by this Court in
Jai Kishan Vs. U.P. Cooperative Bank
Ltd., 1989(1) UPLBEC 144.

4. From the facts narrated in the writ
petition, however, it appears that the
petitioner was appointed as a seasonal
clerk on ad hoc basis for a period of three
months in U.P. State Food and Essential
Commodities
Corporation
Ltd,
(hereinafter
referred
to
as
the
"Corporation") and posted at Sewarhi
Purchase Centre. Thereafter he was
further employed for another period of
three months by order dated 15.01.1985
and so on. After amendment of the U.P.
Regularisation of Ad hoc Appointments
(on Posts Outside the Purview of the
Public Service Commission), Rules 1979
(hereinafter referred to as the "1979
Rules") and extension of the cut off date
as 01.10.1986 the petitioner claimed
regularisation and it appears that the
Deputy Finance Manager (Purchase)
made a recommendation on 14.06.1998
for sanction of a post where against the
petitioner
may
be
considered
for
regularisation and thereafter this writ
petition has been filed.

5. Admittedly, from the facts stated
in the writ petition it is evident that there
was no post available where against the
petitioner could have been appointed or
regularised or made permanent in service.
It further appears that seeking a similar
relief some other writ petitions were filed
and one of such is Civil Misc. Writ
Petition No. 20398 of 1988, Rakesh
Kumar Saxena Vs. U.P. State Food and
Essential
Commodities
Corporation
Ltd. and others, which was dismissed by
this
Court
vide
judgement
dated
26.10.2006 and the said judgement of
Hon'ble Single Judge has been confirmed
in Special Appeal No. (7) of 2008, Tek
Chand and others Vs. U.P. State Food
and
Essential
Commodities
Corporation Ltd. and others, dismissed
on 07.01.2008.

6. It is well settled that in the
absence of any post neither the question
of regularisation nor permanence is
permissible. Besides the appointment
made for a fixed term or ad hoc
appointment does not confer any right
upon the incumbent concerned to claim
regularisation unless it is provided under
the statutory rules. The judgement of this
Court in Jai Kishan (supra) has no
application to the facts of this case
inasmuch as this aspect has already been
considered by a Division Bench of this
Court in Dukhi Singh Vs. State of U.P.
and others, 2007(4) ADJ 186 and it has
been held that was a case decided in the
absence of any defence taken by the
respondents, and it has no universal
application to other matters. The validity
of cut off date prescribed under 1979
Rules has already been upheld by this
Court in several cases. In Subedar Singh
and others v. District Judge, Mirzapur
and another, 2001 (1) AWC 287 (SC)
the Hon'ble Apex Court confirmed the
judgment of a Division Bench of this
Court upholding the cut of date as
1.10.1986
fixed
under
the
U.P.
Regularization of Ad hoc Appointment
(On Posts outside the Purview of U.P.
Public Service Commission) Rules, 1979,
as amended by Second (Amendment)
774 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

Rules, 1989 where this Court held as
under:

".......One
of
the
relevant
considerations for regularisation is the
length of the service rendered by the ad
hoc employee ... but we see no rationale
behind the view that all the employees
even if they had put in only one day of
service as ad hoc should have been made
eligible to be considered and, therefore,
the cut off date specified in Rule 10 is
irrational. .... What should be the length
of service is a matter of policy to be
decided by the Rule making authority.
Further, length of service is not the only
criterion to be taken into consideration
while making such decision. There can be
no rule of thumb in such matters. It is not
beyond the competence of the Rule
making authority to limit eligibility to the
employees who joined service as ad hoc
employees upto a specified date..."

7. The judgment of this Court was
confirmed by the Hon'ble Apex Court on
merit, agreeing with the reasoning and the
conclusion given in the judgment, as is
apparent from para 3 of the judgment, in
Subedar Singh (supra) wherein the
Hon'ble Apex Court held as under:

"... The High Court has examined all
the contentions by a detailed discussion of
the relevant provisions of the Rules and
we do not find infirmities with the
reasoning and conclusions of the High
Court in the impugned judgment. No rule,
law
or
regulation,
nor
even
any
administrative order had been shown to
us on the basis of which the appellants
could claim the right of regularisation, in
the aforesaid premises, we do not find any
merit in any of these appeals which
accordingly stands dismissed but in the
circumstances, there will be no order as
to costs."

8. Again the cut of date of 30.6.1998
provided in U.P. Regularization of Ad hoc
Appointment
(on
posts
outside
the
Purview
of
U.P.
Public
Service
Commission) Rules, 1979, as amended in
2001 came up for consideration before a
Hon'ble Single Judge in Shivaji Singh
and others v. High Court of Judicature
at Allahabad and others, Civil Misc.
Writ Petition No.52755 of 2002 decided
on 8.8.2003 and the Hon'ble Single Judge
upheld the aforesaid cut of date. The
matter went in Special Appeal No.705 of
2003 and upholding the cut of date a
Division Bench held as under:

"It
further
observed
that
the
proposed amendment substituting the cut
off date did not create two classes of
persons. It created only one class of
persons
who
possessed
requisite
qualification for regular appointment at
the time of ah hoc appointment and had
been directly appointed on ah hoc basis
on
or
before
30.6.1998
and
was
continuing on service as such on
20.12.2001 and had further completed 3
years of service. From the scheme
underlying the amendment only one class
of person had been taken up for
consideration for regularisation i.e. a
person who filled all the 3 conditions
given in Rule 4 of the Rules 2001."

9. Following the aforesaid two
judgments another Division Bench of this
Court in Vinita Singh and others v.
State of U.P. and others, 2006 (2) AWC
1738 has upheld the cut of date 30.6.1998
provided U.P. Regularization of Ad hoc
Appointment
(on
posts
within
the
Purview of U.P. Co-operative Institutional
3 All] Shree Shri Ram Das V. M/s Punjab Iron Stores and another

775
Service Board) Regulation 1985, as
amended
vide
notification
dated
24.3.1993.

10. Besides, the matter is also
covered by the decisions of this Court in
Rakesh Kumar Saxena (supra) and Tek
Chand
(supra).
The
writ
petition,
therefore, lacks merit and is accordingly
dismissed. Interim order, if any, stands
vacated.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.09.2009

BEFORE
THE HON'BLE C.K. PRASAD,C. J.
THE HON'BLE R.K. AGRAWAL, J.
THE HON'BLE A.P. SAHI, J.
THE HON'BLE VIKRAM NATH, J
THE HON'BLE PANKAJ MITHAL, J

Second Appeal No. 284 of 1972

Shree Shri Ram Das...Plaintiff-Appellant
Versus
M/S Punjab Iron Stores and others

 ...Defendants-Respondents

Counsel for the Appellant:
Sri V.K.S. Chaudhary
Sri Satish Chandra Srivastava
Sri Sanjay Krishna

Counsel for the Respondents:
Sri S.P. Kesarwani
S.C.
ADV. General

Court fee Act-Section-5-Whether the
provision of Court fee Act enhancing
from time to time is ultravires? held-'No'
reason discussed relying law laid down
by Apex Court.

Held: Para-10 & 19

Rival
submissions
necessitate
examination
of
the
Constitutional
Scheme. Article 245 of the Constitution
of India confers on the Parliament power
to make laws for the whole or any part of
the territory of India and the legislature
of the State for the whole or any part of
the State. Article 246 of the Constitution
gives exclusive power to the Parliament
to make laws with respect to any of the
matters enumerated in List-I (Union
List), whereas the legislature of any
State has exclusive power to make laws
for such State or any part thereof with
respect to any of the matters in List II
(State List) in the VIIth Schedule. Entry
III
of
State
List
gives
the
State
Legislature power to make laws inter alia
in respect of fee taken in all Courts
except the Supreme Court. In view of
aforesaid, there is no difficulty in holding
that the State Legislature has power to
make law in respect of fee taken in all
Courts except the Supreme Court.

Accordingly the answer of the question
formulated for our decision is in the
negative
and
it
is
held
that
the
provisions of the Court Fees Act as
amended from time to time in the State
of Uttar Pradesh is not ultra vires the
State Legislature.
Case law discussed:
AIR 1973 SC 724, AIR 1996 SC 676, JT
2001(2)SC 242

(Delivered by Hon'ble C.K. Prasad, C.J.)

1. This appeal has come up for
consideration before us on a reference
made by a learned Single Judge by his
order dated 18th of August 1975. The
facts, which led the learned Single Judge
to make reference, are as follows:-

2. The plaintiff is the appellant. The
defendants are his sole selling agent and
the plaintiff filed the suit for accounting
against the defendants in respect of
commission sale made by them at its sole