# Shri Mahendra Pratap Singh v. State of U.P. and another

- **Citation:** (2007) 3 ILRA 848
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-08-22
- **Case number:** Civil Misc. Writ Petition No. 785 of 1992
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-mahendra-pratap-singh-v-state-of-u-p-and-another-41088
- **Pages:** 5

## Headnote

Services Rules, 1985-Criation of PostPublic Relation Officer-petitioner initially
appointed as care taker-Development
Authority by resolution 21.1.85 directed
to work as P.R.O.-disapproved by state
Government-without
disclosing
any
reason as to how the Development
authority has no jurisdiction-impugned
order Quashed-with direction to the
State Government to create post-in case
of selection preference be given-salary
drawn
by
petitioner
shall
not
be
refunded-petitioner
reverted
to
his
original post.

Held: Para 8

The State Government, in the impugned
order, has nowhere stated, as to why,
the post of the Public Relation Officer
could not be created in Ghaziabad
Development
Authority.
The
State
Government has not addressed the
matter on this aspect and based the
impugned order on the sole ground that
the Ghaziabad Development Authority
had no right to make an appointment.
The State Government has not passed
any order for the creation of the post of
Public Relation Officer.
Case law discussed:
2007 (1) SCC-4081
2006 (4) SCC-667
2006 (8) SCC-67

## Text

848 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
by the trial court as well as lower
appellate court as barred by limitation and
the Board of Revenue fell in error in
allowing the second appeals. Thus, all the
writ petitions succeed and are allowed.
Common judgement and order dated
2.9.1994 passed by Board of Revenue
deciding all the 13 second appeals stands
quashed.

13. However, in the facts and
circumstances, there shall be no order as
to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.08.2007

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 785 of 1992

Shri Mahendra Pratap Singh ...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri B.P. Srivastava
Sri S.S. Tomar

Counsel for the Respondents:
Sri A.K. Mishra
Sri Subodh Kumar
S.C.

Uttar Pradesh Development Authorities
Services Rules, 1985-Criation of PostPublic Relation Officer-petitioner initially
appointed as care taker-Development
Authority by resolution 21.1.85 directed
to work as P.R.O.-disapproved by state
Government-without
disclosing
any
reason as to how the Development
authority has no jurisdiction-impugned
order Quashed-with direction to the
State Government to create post-in case
of selection preference be given-salary
drawn
by
petitioner
shall
not
be
refunded-petitioner
reverted
to
his
original post.

Held: Para 8

The State Government, in the impugned
order, has nowhere stated, as to why,
the post of the Public Relation Officer
could not be created in Ghaziabad
Development
Authority.
The
State
Government has not addressed the
matter on this aspect and based the
impugned order on the sole ground that
the Ghaziabad Development Authority
had no right to make an appointment.
The State Government has not passed
any order for the creation of the post of
Public Relation Officer.
Case law discussed:
2007 (1) SCC-4081
2006 (4) SCC-667
2006 (8) SCC-67

(Delivered by Hon1ble Tarun Agarwala, J.)

1. The petitioner was appointed as a
Caretaker in Ghaziabad Development
Authority on 9.8.1984. The Ghazlabad
Development Authority in its meeting
dated 21.1.1985 unanimously resolved to
create a post of Public Relation Officer.
This resolution was sent to the State
Government for its approval, inasmuch
as, the power to create and sanction a post
lies with the State, Government. Pending
consideration for the creation of the post
before
the
State
Government,
the
Ghaziabad Deve1opment Authority, by its
order dated 3.4.1986 nominated the
petitioner to work as an Assistant Public
Relation Officer, in addition to the work
of a Caretaker. Subsequently, by another
order dated 2.9.1998, the petitioner was
directed to work as a Public, Relation
Officer till further orders, but was not
entitled to be given the perks and benefits
attached to the post of a-Public Relation
3 All] Shri Mahendra Pratap Singh V. State of U.P. and another
849
Officer. Eventually, by an order dated
25.8.1989, the Ghaziabad Development
Authority appointed the petitioner as a
Public Relation Officer in the pay scale of
Rs.770-1600
in
anticipation
of
the
sanctioning of the post by the State
Government. The appointment
order
further stipulated that the petitioner would
be required to give an undertaking to the
effect that, in the event, the State
Government refused to sanction the post,
the excess money earned by the petitioner
would be refunded.

2. From the record, it further
transpires
that
the
Ghaziabad
Development Authority issued a letter of
reminder dated 9.3.1990 and 14.11.1991
requesting the State Government to pass
orders on the creation of the post and also
intimated the State Government that in
anticipation of the creation of such post,
the Ghaziabad Development Authority
has already appointed the petitioner on the
post of Public Relation Officer, whose
performance was upto the mark and also
recommended the State Government to
appoint the "petitioner on the said post
after sanctioning of the post. The State
Government, by the impugned order dated
20.12.1991
intimated
the
Ghaziabad
Development Authority that they had no
jurisdiction to create the post of a Public
Relation Officer nor had any business to
appoint the petitioner on that post, and
therefore,
directed
the
Ghaziabad
Development Authority to terminate the
services of the petitioner forthwith.
Against this order, the petitioner filed the
present writ petition before this Court and
by an interim order, the court directed the
parties to maintain status quo. Based on
the said interim order, the petitioner
continued to work as a Public Relation
Officer and is being paid his salary.
3. The State Government, as well as,
the Ghaziabad Development Authority
has filed a counter affidavit. The State
Government contended that the authority
to create and sanction a post lies with the
State
Government
under
the Uttar
Pradesh
Development
Authorities
Centralised Services Rules, 1985 and
that, the appointing authority of a Public
Relation Officer is the State Government.
Further, the post of Public Relation
Officer is required to be filled up through
the Public Service Commission, as is
clear from the Rule 14 of the aforesaid
Rules read with Schedule VIII annexed to
the Rules. The State Government in its
counter affidavit, submitted that the
Ghaziabad Development Authority had no
jurisdiction to create a post of a Public
Relation Officer or appoint the petitioner
on that post. The Ghaziabad Development
Authority in its counter affidavit also
reiterated the same stand and, further
submitted that the petitioner was given the
appointment on the post of Public
Relation Officer on a pay scale payable to
a
Public
Relation
Officer
on
an
undertaking given by him and that, in the
event, the post was not sanctioned, he has
required to refund the benefits. The
authority contended that a back door entry
was made by the petitioner on a post
which was neither sanctioned nor created
by the State Government. Consequently,
the said appointment was illegal without
jurisdiction and the petitioner was liable
to be reverted to the post of Caretaker and
was also liable to refund the execs
amount.

4. In support of his submissions, the
learned counsel for the respondent,
Ghaziabad Development Authority placed
reliance upon a large number of decisions,
namely,
Indian
Drugs
&
850 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Pharmaceuticals Ltd. Vs. Workmen,
2007(1) SCC 408, Secretary, State of
Karnataka and others Vs. Uma Devi (3)
and others, 2006 (4) SCC 1, State of
U.P. Vs. Neeraj Awasthi and others,
2006(1) SCC 667, State of M.P. and
others Vs. Yogesh Chandra Dubey and
others, 2006(8) SCC 67 and Punjab
Water Supply and Sewerage Board Vs.
Ranjodh Singh and others, 2007 (2)
SCC 491 on the question that an
appointment could not be made where the
post was neither sanctioned or created and
such an appointment made on a post
which was non existent could not entitle
an incumbent for the regularisation of the
services on the ground that he had worked
for a long period of time. These decisions
primarily are on the question of the
regularisation of the services. These
decisions,
in
my
opinion,
are
distinguishable and are not directly
applicable to the facts and circumstances
of the present case.

5. In the present case, the position is
different. There is no question of a back
door entry made by the petitioner. In this
regard, there is nothing on record to
indicate that the petitioner made a back
door entry for an appointment on the post
of Public Relation Officer. In fact, the
record clearly indicates that the petitioner
was appointed, as a Caretaker on
9.8.1984. The records further suggests
that
the
Ghaziabad
Development
Authority nominated the petitioner to also
work, as an Assistant Public Relation
Officer in 1986 without any emoluments
of the post of the Public Relation Officer
and, since then, the petitioner was made
to do the work of a Public Relation
Officer.
In.1989
the
Ghaziabad
Development Authority granted him the
post and pay scale of a Public Relation
Officer with the undertaking given by the
petitioner that he would refund the
benefits,
in
the
event,
the
State
Government refused to sanction the post.
These
orders
of
the
Ghaziabad
Development Authority indicate clearly
beyond a reasonable doubt that the
Ghaziabad Development Authority itself
created the post and appointed the
petitioner on the post of Public Relation
Officer. The petitioner did not ask for that
post. The mere fact that an undertaking
was provided by the petitioner did not
mean that he was keen for the job of the
Public Relation Officer. It did not mean
that he was given the post and pay scale
of a Public Relation Officer at his
instance. In fact, the order and the
sequence of event indicates that the
petitioner was required to furnish an
undertaking because, the authority had
asked him to do so. Consequently, it does
not lie in the mouth to the Ghaziabad
Development Authority to turn back and
contend that the petitioner had made a
back door entry and that his appointment
was void ab initio and his services was
required to be terminated. The stand taken
by the Ghaziabad Development Authority
in its counter affidavit is clearly an after
thought and has been made in order to
protect
themselves
of
their
illegal
activities.

6. Admittedly, the Ghaziabad
Development Authority resolved and
passed
a
unanimous
resolution
on
21.1.1985 creating a post of a Public
Relation Officer. This action itself was
illegal and in violation of the Uttar
Pradesh
Development
Authorities
Centralised Services Rules, 1985. The
Ghaziabad Development Authority could
not have created a post of a Public
Relation Officer. The authority, to appoint
3 All] Shri Mahendra Pratap Singh V. State of U.P. and another
851
a Public Relation Officer, was the State
Government through the Public Service
Commission.
The
Ghaziabad
Development Authority had no power to
create or appoint any person on the post
of Public Relation Officer. The initial
action
made
by
the
Ghaziabad
Development
Authority
was
wholly
illegal and without jurisdiction and now,
the Ghaziabad Development Authority is
trying to cover up their illegal steps by
asserting that the petitioner was appointed
by a back door entry. This contention is
patently erroneous. The judgments cited
by the learned counsel are distinguishable.

7. Admittedly, the petitioner has
worked as a Public Relation Officer from
3.4.1986 to 20.12.1991, i.e., for more than
5 years. The Ghaziabad Development
Authority is responsible for allowing him
to work as a Public Relation Officer. The
letters of the recommendations written by
the Ghaziabad Development Authority to
the State Government, vide letters dated
9.3.1990 and 14.11.1991, indicates that
the Ghaziabad Development Authority
had highly recommended the petitioner
for being appointed on the post of Public
Relation Officer. Further, this petition
was entertained and by an interim order
dated 7.1.1992, the parties were directed
to maintain status quo. Based on the
interim order, it is admitted by the parties
that the petitioner was allowed to work as
a Public Relation Officer and, till date, he
is working on the said post without any
complaint from the authorities.

8. In such a scenario, the question is
how the equities have to be balanced in
the light of the fact that admittedly, there
is no post existing as on date in the
Ghaziabad
Development
Authority,
namely, the post of Public Relation
Officer.
Admittedly,
the
State
Government has not sanctioned any post
of Public Relation Officer. It is also an
admitted case that the Public Relation
Officer can only be appointed by the State
Government through the Public Service
Commission. It is also on the record that
the Ghaziabad Development Authority
allowed the petitioner to work as a Public
Relation Officer and also took an
undertaking that, in the event, the post
was
not
sanctioned
by
the
State
Government, he would be liable to refund
the benefits accrued to him while working
on the post of the Public Relation Officer.
It has come on record that an adhoc
appointment on the post of Public
Relation Officer was made by the State
Government
for
the
Lucknow
Development
Authority
without
appointing the said person through the
Public Service Commission. The State
Government, in the impugned order, has
nowhere stated, as to why, the post of the
Public Relation Officer could not be
created
in
Ghaziabad
Development
Authority. The State Government has not
addressed the matter on this aspect and
based the impugned order on the sole
ground that the Ghaziabad Development
Authority had no right to make an
appointment. The State Government has
not passed any order for the creation of
the post of Public Relation Officer.

9. In view of the aforesaid, this court
is constrained to pass the following
directions:-

(1) The impugned order is quashed.
(2) The petitioner will be reverted to the
post of Caretaker since there exists
no post of a Public Relation Officer
in the Ghuziabi1cl Development
Authority.
852 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
(3) Since the petitioner has worked as a
Public Relation Officer, the salary
and the benefits drawn by him on the
post of a Public Relation Officer
shall not be refunded and he would
be entitled to retain the said amount
on the principle of having worked on
that post inspite of the undertaking
obtained
by
the
Ghaziabad
Development Authority.
(4) A mandamus is issued to the State
Government to consider the proposal
of
the
Ghaziabad
Development
Authority for the creation of the post
of a Public Relation Officer within
three months from today. If the State
Government finds that there is a need
for the creation of a post of a Public
Relation Officer, then necessary
orders would be passed for its
creation and sanctioning of the post
of Public Relation Officer within the
aforesaid period.
(5) In the event, the post is sanctioned,
the petitioner would be given the first
preferential right for appointment on
the post of the Public Relation
Officer. The State Government will
also issue an appointment letter on an
adhoc basis within two weeks of the
sanctioning of the post provided the
petitioner is found to be qualified for
the said post.
(6) The State Government and the
Ghaziabad Development Authority,
as the case may be, will forward the
necessary papers r to the Public
Service Commission for post facto
approval of the appointment. This
appointment would be subject to the
conditions
that
the
petitioner
possesses the requisite qualifications.
(7) If for some reason, the State
Government refuses or declines to
sanction the post of a Public Relation
Officer in Ghaziabad Development
Authority,
in
that
event,
the
Ghaziabad Development Authority
will
promote
the
petitioner
or
provide
him
with
consequential
fitment benefit on such post which is
equivalent to the pay scale to which
the petitioner is drawing as on date,
so that does he does not suffer any
further monetary loss.

The writ petition is allowed with the
aforesaid directions.

Shri R.K. Chaubey, the learned
Standing Counsel will sent a certified
copy of the judgment to the State
Government immediately for necessary
action and compliance.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.10.2007

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 50257 of 2007

Gyandhari Pal and others ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Atul Kumar

Counsel for the Respondents:
Sri H.P. Singh
S.C.

U.P. Re-orgnisation Act 2000-Transfer of
Police constable from U.P. to State of
Uttarakhand-approved by the advisory
committee of both State-final list of
transfer published-in the eye of law the
petitioner will be deemed to be the
employee
of
Uttrakhand-High
Court
Allahabad has no jurisdiction- even the