# Shri Naunihal Haider v. Asst. Settlement Officer Consolidation, Budaun & Ors

- **Citation:** (2023) 4 ILRA 1349
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-24
- **Case number:** Writ-A No. 16860 of 1991
- **Bench:** Saurabh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-naunihal-haider-v-asst-settlement-officer-consolidation-budaun-ors-50049
- **Pages:** 5

## Headnote

Service Law - Petitioner appointed as
Lekhpal (Consolidation) as a substituteservices
continued
as
stopgap
arrangement
-no
authorisation
or
regularisation of appointment as per the
procedure-services
continued
on
the
strength of interim orders of the courtappointment illegal as it was not followed
by regularisation-petition dismissed.

HELD:
As discussed above, the words "permanent" so
far as relating to services of any establishment
are concerned, must be followed with the
process of regularization which has to be
culminated in shape of formal orders for
regularization of services of any incumbent who
has already been inducted in the services from
any mode either its temporary/daily wager/work
charge/contractual/ or as the case may be.

Application allowed. (E-14)

List of Cases cited:

## Text

4 All. Shri Naunihal Haider Vs. Asst. Settlement Officer Consolidation, Budaun & Ors.
1349
period of 12 weeks. There will be no order
as to costs."

24. The Apex Court is of the firm
view that no disciplinary proceeding can be
initiated or continued against a dead
person.

25. So far as, present case is
concerned,
inquiry
proceeding
was
initiated, charge sheet was issued, but
before submission of reply of the charge
sheet, husband of petitioner died. Inquiry
officer came to the conclusion that, as
husband of petitioner (employee) died
during the pendency of inquiry proceeding,
therefore, it is required on the part of of
disciplinary
authority
to
drop
the
disciplinary proceeding. Thereafter, no
further order has been passed upon the
inquiry proceeding. Only after filing of writ
petition by the petitioner, order was passed
to decide the representation of petitioner
dated 21.12.2021, upon which order of
recovery dated 27.05.2022 has been passed
for recovery of amount of Rs. 10,14,594/-.
In fact, it is nothing, but re-initiation of
earlier inquiry, which has not been
completed in light of recommendation
made by the inquiry committee.

26. Law is very well settled that, in
case inquiry has not been completed and
delinquent employee dies during the
pendency of the inquiry, the same shall not
continued and completed. It is very
surprising that, here, respondents are well
aware of the fact that before submission of
reply of charge sheet, husband of petitioner
died and they have not proceeded to
complete the inquiry. It is only after
receiving
the
representation
dated
21.12.2021 of petitioner in compliance of
order of this Court dated 07.12.2021 passed
in Writ A No. 16683 of 2021, respondent
has
passed
impugned
order
dated
27.05.2022, which amounts to re-initiation
of departmental proceeding.

27. Under such circumstances,
passing of impugned order shows that
respondents are fully unaware with the
service
law.
Therefore,
this
Court
depreciate and condemns the act of
respondents and a warning is also issued to
them to be conscious in future while
dealing with such matters.

28. Under such facts of the case,
impugned order dated 27.05.2022 is
contrary to the settled provisions of law,
therefore, writ petition is allowed and
impugned order dated 27.05.2022 is hereby
quashed.

29. Respondent No. 2 is directed to
pay the deducted amount of Rs. 10,14,594/-
forthwith to the petitioner within two
months from the date of submission of
certified copy of this order, alongwith
interest as @ 6 % from due date to the date
of actual payment.
----------
(2023) 4 ILRA 1349
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.03.2023

BEFORE

THE HON'BLE SAURABH SRIVASTAVA, J.

Writ-A No. 16860 of 1991

Shri Naunihal Haider ...Petitioner
Versus
Asst. Settlement Officer Consolidation,
Budaun & Ors. ...Respondents

Counsel for the Petitioner:
Sri Hari Bhawan Pandey, Sri Harish
Chandra, Sri Mata Prasad, Sri R.P.S.
1350 INDIAN LAW REPORTS ALLAHABAD SERIES
Chauhan, Ms. Sufia Saba, Sri Y.K. Singh, Sri
M.A. Qadeer

Counsel for the Respondents:
Sri N.B. Tewari, SC

Service Law - Petitioner appointed as
Lekhpal (Consolidation) as a substituteservices
continued
as
stopgap
arrangement
-no
authorisation
or
regularisation of appointment as per the
procedure-services
continued
on
the
strength of interim orders of the courtappointment illegal as it was not followed
by regularisation-petition dismissed.

HELD:
As discussed above, the words "permanent" so
far as relating to services of any establishment
are concerned, must be followed with the
process of regularization which has to be
culminated in shape of formal orders for
regularization of services of any incumbent who
has already been inducted in the services from
any mode either its temporary/daily wager/work
charge/contractual/ or as the case may be.

Application allowed. (E-14)

List of Cases cited:

1. Dr. Chanchal Goyal (Mrs.) Vs St. of Raj.
(2003) 3 SCC 485

2. Secy., St. of Karnataka & ors. Vs Umadevi &
ors. (2006) 4 SCC 1

(Delivered by Hon'ble Saurabh Srivastava, J.)

1. Heard Shri Mata Prasad, learned
counsel for the petitioner and learned
Standing Counsel for the State respondents.

2. It is case of the petitioner that he
has been engaged for the post of Lekhpal
(Consolidation) way back on 08.12.1987 as
a substitute and on the basis of the work
and experience his services were again
accepted vide order dated 20.03.1989 under
the short term vacancy for considering the
training of the petitioner and the same has
been considered at the later stage.

3. Certain matters of the similarly
situated candidates who rendered their
services for more than a year for the post of
Lekhpal (Consolidation) the same has been
considered in pursuance to the letter dated
25.03.1989 issued by the Commissioner
(Consolidation), in lieu of the same the
services of the petitioner has been again
considered
under
the
Stop
Gap
Arrangement vide order dated 20.05.1989.

4. Vide order dated 01.05.1991, in
pursuance to the order dated 29.04.1991,
the services of the petitioner came to an
end which impugned the present petition.

5.

While
challenging
the
aforementioned order passed by respondent
no. 1, the grounds relied upon by the
counsel for the petitioner as narrated in the
petition with regard to the competency of
the authority who passed the order dated
01.05.1991 it is alleged that the same is
contrary to the Government Order dated
16.09.1988 circulated by the respondent no.
2 and the appointment of the petitioner was
against the substantive vacancy and the
same has been treated as Stop Gap
Arrangement and after the passage of time
the same has been confirmed also.

6. Per contra, the stand taken in the
present petition has been diluted by the
respondents by way of preferring the
detailed counter affidavit wherein the
prayer as made in the petition has been
opposed on the ground that the services of
the petitioner has never been regularized
and the entire services whatsoever has been
rendered by the petitioner is only on the
basis of Stop Gap arrangement and under
4 All. Shri Naunihal Haider Vs. Asst. Settlement Officer Consolidation, Budaun & Ors.
1351
capacity
of
substitute
arrangement.
Moreover, after the order dated 01.05.1991
the continuance as mentioned by the
petitioner over the same post was under the
strength of interim orders of the Court.

7. So far as the Government Order
dated 25.03.1989 is concerned, it has
been stated by the learned counsel for the
respondent, the same is misconstrued as a
Government Order. By bare perusal of
the Annexure No. 5 to the petition which
is said to be a Government Order is
issued
by
the
Consolidation
Commissioner. The Authority under the
business rules pertaining to the State of
U.P. a Government Order is a specific
orders
issued
under
the
signatures/instructions
of
the
Chief
Secretary/Additional Chief Secretary and
at the time when the order has been
passed way back in the year 1989, it is
the
Principal
Secretary
who
was
competent to pass any Government Order
under the delegated power permitted by
the Chief Secretary.

8. The narration of the petition does
not disclose any statutory rights accrued
in favour of the petitioner to be continued
over the same post for a long time and as
such, the indulgence made by the
competent authority while issuing the
order
dated
01.05.1991
has
been
defended by the learned counsel for the
respondents on the ground that the same
was justified since perpetuating the
continuance over the substantive vacancy
in favour of the persons who has not been
inducted as per proper procedure for
recruitment over the post concerned may
create complexities for those who have
already inducted in the services over the
same post after due process of law.

9. Learned counsel for the petitioner
relied upon the orders passed during
rendering services of the petitioner which
have already been appended along with the
supplementary affidavit as Annexure No. 2
available at page No. 50. Order dated
20.03.1999 through which the services of
the petitioner declared as permanent subject
to outcome of the pendency of the writ
petition and thereafter the above mentioned
order dated 20.03.1999 was passed by the
Settlement Officer, Consolidation, DistrictBadaun in pursuance of the order dated
03.06.1991 passed by this Court through
which the interim protection has been
granted in favour of the petitioner with
regard to only continuance of the services
till 29.07.1991 and the same has been
extended from time to time.

10. During pendency of the present
petition certain event took place in shape of
dismissal of the petition and thereafter the
Special Appeal has been preferred by the
petitioner through which the matter has
been restored and the same has been come
up for adjudication on merits before this
Court.

11. The reliance over the order dated
20.03.1991 is only for the conferment of
services over post of Lekhpal on the
strength of the interim protection as granted
by this Court in favour of the petitioner,
whereas on the precise query as made
before the learned counsel for the petitioner
with
regard
to
the
confirmation,
regularization or the mandatory training
which has been defined under the statutory
provisions contained in the services of the
Lekhpal (Consolidation) is concerned, the
same are missing in the records meaning
thereby the services of the petitioner has
never ever been regularized by formal
1352 INDIAN LAW REPORTS ALLAHABAD SERIES
order passed by any of the competent
authority of the responding department.

12. The basic principle of service law
pertaining to the confirmation over the
respective post against the substantive
vacancy must be followed with the order of
regularization. In the present case the
petitioner had been inducted in services on
08.12.1987 under the capacity of substitute
and later on continued till the impugned
order dated 01.05.1991 in stop gap
arrangement, the services of the petitioner
were never been regularized and as such,
the confirmation as defined by the service
law does not take place.

13. In the instant matter, it is apparent
from the records that the services of the
petitioner has never ever been regularized
by any of the competent authority after
adopting the due process of law and as
such, "Sthahi" (confirmation) cannot be
treated as confirmation over the post
whereas it is only upon the strength of the
interim protection as granted way back in
the year 1991 at the time of admission of
the instant writ petition and the authority
was conscious about the same and as such,
the endorsement of this confirmation was
subject to outcome of writ petition has been
duly
mentioned
in
the
order
dated
20.03.1999, which has been stated by the
learned counsel for the petitioner as the
order of confirmation over the respective
post.

14.

After
hearing
the
rival
submissions advanced by the learned
counsel for the parties, it is crystal clear
that the services of the petitioner has been
initiated and accepted over the post of
Lekhpal (Consolidation) without adopting
the due process of recruitment as
prevailing in the year 1989 and after
certain gaps the same were adjusted only
on the basis of experience gained by the
petitioner over the respective post by
conduction and rendering the services for
the similar nature.

15. By bare perusal of the different
orders issued in favour of the petitioner
for the post of Lekhpal (Consolidation)
clearly shows that the services of the
petitioner were taken only against the
Stop
Gap
Arrangement
or
under
substitute arrangement.

16. So far as regarding the "Sthahi
(Permanent) is concerned, the same is
only at the strength of the interim
protection as granted in favour of the
petitioner.

17. As discussed above, the words
"permanent" so far as relating to services
of any establishment are concerned, must
be
followed
with
the
process
of
regularization which has to be culminated
in
shape
of
formal
orders
for
regularization
of
services
of
any
incumbent who has already been inducted
in the services from any mode either its
temporary/daily
wager/work
charge/contractual/ or as the case may be.

18. It has been informed by the
learned counsel for the petitioner that under
the strength of the interim order as passed
by this Court at the admission stage the
petitioner rendered his services up to the
highest satisfaction of the authorities and
attained the age of superannuation on
30.01.2014 and thereafter he is no more in
services and as such, there is hardly any
ground available for seeking any retiral
benefit since the services of the petitioner
has not been regularized and the order
dated 29.04.1991 is justified. Learned
4 All. Kumari Poonam Nijhawan Vs. Union of India & Ors.
1353
counsel for the respondents has placed
reliance upon the following judgments of
the Apex Court:-

1. Dr. Chanchal Goyal (Mrs.)
vs. State of Rajasthan (2003) 3 SCC 485.

2.
Secretary,
State
of
Karnataka and Others versus Umadevi
and Others (2006) 4 SCC 1.

19. It is made clear that the services
of the petitioner has never been regularized
by any specific formal order issued by the
competent authority. The instant petition
does not warrant any interference by this
Court and is accordingly dismissed.
----------
(2023) 4 ILRA 1353
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.03.2023

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Writ-A No. 19079 of 2018

Kumari Poonam Nijhawan ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Siddharth Nandan

Counsel for the Respondents:
Sri Vivek Kumar Rai, Sri Gopal Verma

Service
Law
-
order
of
Central
Administrative Tribunal under holding
the petitioner to be not dependent on
her
mother-
under
challengedependency to be determined on the
basis of the minimum family pensionpetitioner's salary was less than the
payable family pension- petitioner held
to be entitled to the family pensionimpugned
order
quashed-petition
allowed with costs.
HELD:
In the given facts, it is admitted that the
minimum family pension computed as per the
Railways was at Rs. 11776/- inclusive of
dearness allowance as applicable on the date
of death of the pensioner and on the said
date the monthly salary of the petitioner was
at Rs. 10912/-. (Para 16)

In the circumstances, we are of the opinion
that the petitioner has been subjected to
unnecessary harassment by the respondentRailway authorities. Accordingly, the writ
petition is allowed. (Para 17)

Petition Allowed. (E-14)

(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard Sri Siddharth Nandan,
learned
counsel
appearing
for
the
petitioner/original applicant and Sri Goptal
Verma, learned counsel appearing for the
respondent/Railways.

2. Petitioner/original applicant is
seeking
quashing
of
the
impugned
judgment and order dated 9 May 2018,
passed by the Central Administrative
Tribunal, Allahabad Bench Allahabad, (for
short ''Tribunal') in Original Application
No. 1330/01512 of 2015 whereby, the
original application (for short ''OA') came
to be dismissed.

3. Father of the petitioner was an
employee of the respondent-railways and
retired on 30 April 1985. Pension of the
employee was duly computed and the
employee received pension until his death
on 13 December 2007. Thereafter, wife of
the employee and mother of the petitioner
received family pension till her death until
23 October 2013. Petitioner, is the
unmarried
daughter
of
the
deceased
employee who was living with her parents,