# Shree Ram v. State of U.P. & Ors

- **Citation:** (2022) 12 ILRA 321
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-23
- **Case number:** Writ-A No. 7697 of 2022
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shree-ram-v-state-of-u-p-ors-48021
- **Pages:** 6

## Headnote

A. Service Law - Pension - U.P. (Zila
Panchayat)
Employees
Post
Retiral
Benefits Service Rules, 1972 - Clause 7(b)
of Rule 2 - Service rendered in ad-hoc,
temporary establishment and work charge
establishment is considered as qualifying
service subsequent to regularisation of
the incumbent. (Para 15)

In case of the petitioner, he was engaged as a
Paid Apprentice without any post. The proposal
for converting the post of Paid Apprentice into
the post of Tax Collector/Pound Keeper was
rejected by the Government long ago. The
petitioner was never regularised
on any
sanctioned post. No doubt, the petitioner was
asked to work on in various capacities for 26
years by the respondents but such work that
was taken from him, was out of administrative
exigency and paid from contingency fund. There
being no post in the regular establishment ever
sanctioned by any competent Authority on
which the petitioner could be said to have been
engaged in accordance with the Rules framed
by the Government in this regard, this Court
cannot grant the relief as prayed for in this
petition. (Para 15)

Writ petition dismissed. (E-4)

Precedent considered:

## Text

12 All. Shree Ram Vs. State of U.P. & Ors.
321

11. From the law noticed above, it is
clear that while exercising contempt
jurisdiction, the court must not travel
beyond the four corners of the order of
which violation is alleged and it should not
enter into questions that have not been dealt
with or decided in the judgment or the
order violation of which is alleged. If the
judgment or order does not contain any
specific direction regarding a matter or if
there is any ambiguity in the directions
issued therein it will be better to direct the
parties to approach the court which
disposed of the matter for clarification of
the order instead of the court exercising
contempt jurisdiction taking upon itself the
power to decide the original proceeding in
a manner not dealt with by the court
passing the judgment and order.

12. In light of the law noticed above,
we now proceed to examine whether while
issuing the impugned direction, the learned
Single Judge exceeded its jurisdiction as a
contempt court. In the instant case, on the
basis of facts noticed above, we find that the
writ petitioner (Prof. Rajiv Shekhar) had filed
Writ A No. 16060 of 2019 for the limited
relief of quashing the letter dated 23rd
August 2019 conveying that approval for
disciplinary proceeding against the writ
petitioner may be obtained at the level of IIT
Council. The writ petitioner also prayed for
quashing the memorandum by which a
penalty was proposed against him. There was
no prayer in the writ petition with regard to
emoluments payable to him as an appointee
on the post of Director. The order dated
19.10.2019 recording the undertaking of the
counsel representing the respondents in Writ
A No. 16060 of 2019 is only in respect of
putting those impending proceeding in
abeyance. The scope of a writ petition is
ordinarily determined by the prayer made
therein.
In
such
circumstances,
the
undertaking recorded in the order dated
19.10.2019, in our view, could not have been
interpreted as an undertaking to the effect that
all the emoluments that are attached to the
post of Director shall be admissible to the
writ petitioner particularly, when there was
no such prayer in the writ petition. In such
view of the matter and in light of the judicial
precedents noticed above, governing the
scope of contempt jurisdiction, we are of the
considered view that the direction of the
learned Single Judge, vide order dated
21.10.2022, requiring the respondents to
grant HAG scale in compliance of the writ
court order and, on failure to do so, to appear
before the contempt court, is beyond the
scope of the order of the writ court of which
contempt was alleged and is, therefore, liable
to be set aside. The appeal is allowed. The
direction to the extent indicated above is set
aside.

13. It is clarified that our order will
not preclude the respondent (Prof. Rajiv
Shekhar)
to
move
an
appropriate
application either in the pending writ
petition or to file a fresh writ petition in
respect of grant of HAG scale as has been
claimed
by
him
in
the
contempt
jurisdiction.
----------
(2022) 12 ILRA 321
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.11.2022

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Writ-A No. 7697 of 2022

Shree Ram ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
322 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Maithali Sharan Pipersenia

Counsel for the Respondents:
C.S.C., Sri Mrigraj Singh

A. Service Law - Pension - U.P. (Zila
Panchayat)
Employees
Post
Retiral
Benefits Service Rules, 1972 - Clause 7(b)
of Rule 2 - Service rendered in ad-hoc,
temporary establishment and work charge
establishment is considered as qualifying
service subsequent to regularisation of
the incumbent. (Para 15)

In case of the petitioner, he was engaged as a
Paid Apprentice without any post. The proposal
for converting the post of Paid Apprentice into
the post of Tax Collector/Pound Keeper was
rejected by the Government long ago. The
petitioner was never regularised
on any
sanctioned post. No doubt, the petitioner was
asked to work on in various capacities for 26
years by the respondents but such work that
was taken from him, was out of administrative
exigency and paid from contingency fund. There
being no post in the regular establishment ever
sanctioned by any competent Authority on
which the petitioner could be said to have been
engaged in accordance with the Rules framed
by the Government in this regard, this Court
cannot grant the relief as prayed for in this
petition. (Para 15)

Writ petition dismissed. (E-4)

Precedent considered:

1. Babu Ram Vs St. of U.P. & ors., 2016 (3) ADJ
149 (Para 3) court

2. Mahendra Singh Vs St. of U.P. & ors., Writ-A
No. 8535 of 2014 (Para 8)

3. Prem Singh Vs St. of U.P., AIR 2019 SC 4390
(Para 8)

4. Habib Khan Vs St. of Uttarakhand, Civil
Appeal No. 10806 of 2017, decided on
23.08.2017 (Para 8)

5. Om Prakash Singh Tomar Vs St. of U.P. & ors.,
Writ-A No. 14387 of 2017 (Para 9)
6. Dr. Hari Shankar Ashopa Vs St. of U.P. & ors.,
1989 (59) FLR 110 (Para 9)

7. Rakesh Kumar & ors. Vs St. of U.P. & ors.,
Writ-A No. 6627 of 2021 (Para 10)

8. St. of U.P. Vs Mahendra Singh, Special Appeal
Defective No. 1003 of 2020 (Para 10)

9. St. of U.P. & ors. Vs Bhanu Pratap
Sharma, Special Appeal No. 97 of 2021 (Para
10)

10. Madan Gopal Pandey Vs St. of U.P., Service
Single No. 12417 of 2018 (Para 13)

11. A.P. Srivastava Vs U.O.I., 1995 LawSuit (SC)
921 (Para 14)

Present
petition
assails
order
dated
13.04.2018, passed by the Secretary,
Panchayat
Raj,
Government
of
U.P.,
whereby the St. Government has rejected
the claim of the petitioner for post retiral
dues.

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1. Heard learned counsel for the
petitioner and Sri Mrigraj Singh, learned
counsel appearing on behalf of Zila
Panchayat as well as the learned Standing
Counsel who appears on behalf of the
respondent nos.1 and 2.

2. This petition has been filed by the
petitioner praying for quashing of the order
dated 13.04.2018 served on the petitioner's
counsel
on
27.04.2022
in
Contempt
Petition No.1587 of 2018 and praying for a
mandamus to be issued to the respondents
to pay entire pension along with interest
thereon w.e.f. 31.07.1999.

3. It is the case of the petitioner that
he was initially engaged as a Paid
Apprentice Vaccinator in Zila Panchayat
Gorakhpur in 1974. The District of
12 All. Shree Ram Vs. State of U.P. & Ors.
323
Gorakhpur was bifurcated and new District
of Maharajganj was created. The petitioner
was transferred to Maharajganj along with
other staff and had been working in
Maharajganj since 1993. The petitioner
retired on 31.07.1999 after rendering more
than 26 years of service. He could not get
post retiral benefits and therefore, he filed
Writ Petition No.61840 of 2005 (Shree
Ram Vs. State of U.P. and others) which
was allowed by learned Single Judge on
11.08.2009
with
a
direction
to
the
respondent to pay retiral dues to the
petitioner treating him to have retired from
the post of Pound Keeper. A special appeal,
namely, Special Appeal No.785 of 2010
was
filed
by
the
Zila
Panchayat
Maharajganj which was allowed by the
Division Bench on 28.02.2013 with a
direction to the Single Judge to reconsider
the matter afresh. Learned Single Judge
thereafter rejected the writ petition of the
petitioner by his order dated 12.04.2016
placing reliance upon the judgment of Full
Bench of this Court in Babu Ram Vs.
State of U.P. and others [2016 (3) ADJ
149), wherein the Court had held that
period spent by an employee on work
charge, cannot be counted for the purposes
of calculating the qualifying service for
retiral dues. The petitioner filed special
appeal against the order of the Single Judge
which special appeal was decided on
26.05.2017
with
a
direction
to
the
Secretary, Department of Panchayat Raj to
look into the grievance of the petitioner and
to pass appropriate order thereon within a
period of four months from the date of
receipt of certified copy of that order.

4. Now by the impugned order passed
by
the
Secretary,
Panchayat
Raj,
Government of U.P. dated 13.04.2018, the
State Government had rejected the claim of
the petitioner. Hence this petition.

5. It has been argued by learned
counsel for the petitioner that the petitioner
has been working since 1974 in District
Gorakhpur and was thereafter transferred in
1993 to Zila Panchayat Maharajganj. The
Zila Panchayat Maharajganj has been taken
work from the petitioner and also paying
him salary as is evident from the orders
filed as Annexure-9 and 10 to the petition.
It has been argued that the Zila Panchayat
Maharajganj has been referring to the
petitioner as Pound Keeper sometimes and
also as Tax Collector at other time. After
rendering 26 years of service, the petitioner
has been left on road. Learned counsel for
the petitioner has placed reliance upon
several
judgments
of
the
coordinate
Benches of this Court to say that in similar
matters, this Court has directed payment of
pension and other retiral benefits. Copies of
the orders have been annexed as Annexure13 to the petitioner collectively.

6. Learned Standing Counsel and Sri
Mrigraj Singh have pointed out from the
counter affidavit filed by them and also
from the impugned order that the petitioner
was initially engaged as a Paid Apprentice
Vaccinator in Zila Panchayat Gorakhpur.
The Paid Apprentice Vaccinator has no
right to be appointed on a regular post.
There
was
one
post
of
Assistant
Vaccinator/Superintendent
and
21
Vaccinators in Zila Panchayat Gorakhpur
which were converted into post of Pound
Keepers/Tax Collectors by an order of
Commissioner,
Gorakhpur
dated
14.08.1987. Three posts of Paid Apprentice
Vaccinator however were not converted
into the regular post. The petitioner as well
as two others Paid Apprentice were
transferred to Zila Panchayat Maharajganj
on its creation in 1993. The petitioner
reached the age of superannuation and
retired in July 1999. Although it has been
324 INDIAN LAW REPORTS ALLAHABAD SERIES
accepted by the respondents that the
petitioner has been working on various
assignments given to him and salary has
been paid to him by the Zila Panchayat
Gorakhpur and thereafter Zila Panchayat
Maharajganj. It has been pointed out that
there was no post created by any competent
Authority on which the petitioner could be
said to have been engaged at any point of
time.
Provident
Fund
Contributory
deductions from the salary of the petitioner
was also not done at any point of time. The
proposal sent to the Government for
conversion of Paid Apprentice Vaccinator
to post of Pound Keeper, had been rejected
long ago. The petitioner was asked to work
on
various
assignments
due
to
administrative exigency and he was paid
from contingency fund. The post on which
the petitioner was working, was neither
substantive nor permanent and therefore
could not be said to be a post on the
pensionable establishment as per clause
7(b) of Rule 2 of the U.P. (Zila
Panchayat)
Employees
Post
Retiral
Benefits
Service
Rules,
1972.
The
petitioner's case has therefore been rejected
by the respondent no.1.

7. This Court has considered the
judgements passed by the coordinate
Benches which have been placed on record
collectively as Annexure-13 to the writ
petition.

8. In Writ A No. 8535 of 2014
(Mahendra Singh vs. State of U.P. and 2
others), the writ petitioner was given
temporary appointment in 1981 as Godown
Chaukidar and was regularised with effect
from 05.10.1997 and he retired on
30.06.2011. The Court placed Reliance
upon the judgement of the Supreme Court
in Prem Singh Vs. State of U.P. (AIR
2019 SC 4390) and judgement of the
Supreme Court in Habib Khan Vs. State
of Uttarakhand (Civil Appeal No.10806
of 2017, decided on 23.08.2107) to say
that the petitioner was entitled for benefit
of counting his previous service rendered
before his regularisation in Department as
temporary employee as qualifying service
for pension.

9. In Writ A No.14387 of 2017 (Om
Prakash Singh Tomar vs. State of U.P. and
others) the petitioner was a Seasonal
Collection Amin and his service rendered
as such w.e.f 16.04.1990 to 09.06.2006
when he was regularised as Collection
Amin, were not been counted for the
purposes of qualifying service of pension.
The Court placed reliance upon the
judgement
rendered
in
Prem
Singh
(supra) and also order passed in Dr. Hari
Shankar Ashopa Vs. State of U.P. and
others [1989 (59) FLR 110] to say that
temporary
service
rendered
before
regularisation can be counted as qualifying
service after regularisation.

10. In Writ A No.6627 of 2021
(Rakesh Kumar and 5 others Vs. State of
U.P. and 2 others), the Court was
considering various orders passed against
the writ petitioners rejecting their claim for
counting their service on work charge
establishment as qualifying service for
pension. The Court also considered the
U.P. Qualifying Service for Pension and
Validation Ordinance, 2020 and the Court
relied upon the judgement rendered by the
Division Bench in State of U.P. Vs.
Mahendra
Singh
(Special
Appeal
Defective No.1003 of 2020) wherein the
Division Bench directed that service
rendered in work charge establishment
should be considered for calculating
qualifying service for pension. Such
judgement of the Division Bench was also
12 All. Shree Ram Vs. State of U.P. & Ors.
325
relied upon by another Division Bench in
State of U.P. and others Vs. Bhanu
Pratap Sharma (Special Appeal No.97 of
2021).

11. In Writ A No.35301 of 2017
(Bhanu Pratap Sharma Vs. State of U.P.
and 4 others), the learned Single Judge had
considered service rendered in work charge
establishment by the writ petitioner as
qualifying service for pension in view of
the law settled by the Supreme Court in the
case of Prem Singh (supra). The Special
Appeal arising out of the judgement of the
Single Judge had considered the U.P.
Qualifying
Service
for
Pension
and
Validation Ordinance, 2020 which was
latter converted into Act No.1 of 2021 on
05.03.2021 and Section 2 thereof where
'Qualifying Service' has been defined to
mean the service rendered by an officer
appointed on a temporary or permanent
post in accordance with the provisions of
Service
Rules
prescribed
by
the
Government for the post. In the counter
affidavit, it had come out that the writ
petitioner Bhanu Pratap Sharma had been
appointed in the office of the Executive
Engineer on the post of Rig Assistant on
work charge establishment and thereafter
petitioner was regularised on 18.03.2006.
The Court observed that since the writ
petitioner was appointed on a post in work
charge establishment, the service rendered
on such post shall be considered as
qualifying service as he was regularised
immediately thereafter.

12. In State of U.P. and others Vs.
Mahendra Singh (Special Appeal Defective
No.1003 of 2020) also, the Division Bench
placed reliance upon admission in the counter
affidavit that 415 temporary posts were
created in persuance of the Government order
issued in 1990 and the petitioner was
appointed as Watchman on such temporary
post which was latter converted into a regular
post and the writ petitioner was regularised
on 06.10.1997. The Court relied upon the
judgement in Prem Singh (supra) and
considered services reinded in temporary
establishment
immediately
before
regularisation as qualifying service for
pension.

13. In Service Single No.12417 of 2018
(Madan Gopal Pandey vs. State of U.P.), the
Single Judge placed reliance upon the
judgement rendered in Habib Khan (supra)
and held that the petitioner who was working
as Seasonal Collection Amin before his
regular appointment as Collection Amin,
shall be entitled to get his services rendered
prior to his regularisation as qualifying
service.

14. Learned counsel for the petitioner
has placed reliance upon the judgement in
AP Srivastava Vs. Union of India [1995
LawSuit (SC) 921] where the Supreme
Court was considering the case of the
appellant who had been appointed as
temporary Lower Division Clerk and later on
promoted on Upper Division Clerk thereafter
again reverted and compulsory retirement
order was passed under Rule 56 of the
Fundamental Rules. The Court placed
reliance upon the Rule 56(j) of the
Fundamental Rules and observed that once
an incumbent is compulsorily retired after
rendering required number of years of
service, he shall be allowed to be paid
pension. The condition precedent for being
entitled to pension in case of a temporary
Government servant is rendering 20 years of
service and the appellant had completed more
than 20 years of service.

15. As is evident from a perusal of the
orders passed by the co-ordinate Benches
326 INDIAN LAW REPORTS ALLAHABAD SERIES
and Division Bench of this Court and the
Supreme
Court
as
aforesaid,
service
rendered
in
ad-hoc,
temporary
establishment
and
work
charge
establishment has been considered as
qualifying
service
subsequent
to
regularisation of the incumbent. In case of
the petitioner, he was engaged as a Paid
Apprentice without any post. The proposal
for converting the post of Paid Apprentice
into the post of Tax Collector/Pound
Keeper was rejected by the Government
long ago. The petitioner was never
regularised on any sanctioned post. No
doubt, the petitioner was asked to work on
in various capacities for 26 years by the
respondents but such work that was taken
from him, was out of administrative
exigency and paid from contingency fund.
There being no post in the regular
establishment ever sanctioned by any
competent
Authority
on
which
the
petitioner could be said to have been
engaged in accordance with the Rules
framed by the Government in this regard,
this Court cannot grant the relief as prayed
for in this petition.

16. The writ petition lacks merit and
is hereby dismissed.
----------
(2022) 12 ILRA 326
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.12.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Writ-A No. 11776 of 2017
With
Writ-A No. 4315 of 2017 & Other Cases

Union of India & Anr. ...Petitioners
Versus
C.A.T., Allahabad & Anr. ...Respondents

Counsel for the Petitioners:
Sri Shekhar Kumar Yadav, Sri Krishna
Agarawal, Sri Lal Mani Singh

Counsel for the Respondents:
Sri Shyamal Narain, Sri Siddharth Khare, Sri
Ajai Singh, Sri Ashok Khare (Sr. Advocate)

A. Service Law - Recruitment/Selection -
Apprentices Act, 1961 - Sections 18 & 22 -
Ordnance Factories Group C & D Industrial
Posts Recruitment Rules, 1994 - Schedule
to the Recruitment Rules, 1994 - Column
(11) of clause (5).

Recruitment on the post of "Semi-Skilled
Workman" is governed by the Recruitment
Rules, 1994. The vacancies of "Semi-Skilled
Workman" are liable to be filled in accordance
with the Recruitment Rules, 1994 r/w Section 22
of the Act, 1961. (Para 11, 13 to 16)

B. In direct recruitment for the post of
"Semi Skilled Workman" trade test as
prescribed is mandatory. The term "NonSelection Post" used in Column 5 of Clause
5 of the Schedule of the Recruitment
Rules, 1994 read with Column 11 clearly
establishes that the term "Non-Selection
Post" has been used in Column 5 for posts
to be filled by promotion/ transfer and
also by direct recruitment. The term "NonSelection Post" used in Column 5 has not been
used in a strict sense to indicate only for posts
to be filled by promotion/ transfer. Therefore,
posts to be filled by direct recruitments as
mentioned in Column 11 has to be filled
following
the
procedure
provided
in
the
Recruitment
Rules,
1994
read
with
the
aforequoted policy decisions and particularly
Annexure
to
the
policy
decision
dated
06.01.2011. (Para 11, 17 to 24)

C. Obligation on the St. - It has been well
settled that an apprentice does not have a
statutory right to claim an appointment
and the employer is not under any
statutory
obligation
to
give
him