# Shri Ram Yadav v. State of U.P. & Ors

- **Citation:** (2020) 12 ILRA 729
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-26
- **Case number:** Writ A No. 60602 of 2016
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-ram-yadav-v-state-of-u-p-ors-45516
- **Pages:** 6

## Headnote

A. Service Law - The U.P. Collection Amin
Service Rules, 1974 - U.P. Regularization
of Ad-hoc (On posts outside the purview
of Public Service Commission) Rules,
1979-Regularization and Appointment

The petitioner's claim to regularization was
rejected under the Rules of 1974 as amended
by the 7th Amendment of 2015, on the ground
that 35% quota prescribed under the Rules for
Seasonal Collection Amins was already full by
25.7.2016. So far as the regularization under
the U.P. Regularization of Ad-hoc (On posts
outside
the
purview
of
Public
Service
Commission) Rules, 1979 (for short "Rules of
1979"), as amended by the 3rd Amendment
Rules, 2001, the petitioner was not eligible,
because he was not an Ad-hoc Amin, but
appointed in a Stop Gap arrangement, without
being selected through any process prescribed
by the Rules of 1974. (Para 7)

The Court, finds that the petitioner had been
permitted to continue, at one point of time,
under the umbrella of a judicial order, but not
for the whole of his service. He was permitted
by the respondents to continue in service,
against a sanctioned post, drawing regular
salary after 21.4.2004, without an interim order,
protecting his interest by permitting him to
continue in service. The petitioner retired on
attaining the age of superannuation, and in the
process, has rendered 28 years of service on the
post of Collection Amin. (Para 11)

B.
Difference
between
a
Stop
Gap
arrangement and Ad-hoc arrangement - A
Stop Gap arrangement, by its nature, is
something pro tem. It is not an arrangement
which can continue or ought to continue over a
period as long as 14 years. It cannot, therefore,
be gainsaid that the petitioner was not an adhoc employee, but a man, who filled in Stop
Gap. Ad-hoc means a kind of arrangement that
is not in accordance with the Rules, particularly
in the context of service jurisprudence. No
doubt, the petitioner was not selected in
accordance with the Rules, but he was allowed
to continue for a total period of 23 years, of
which, 14 were without the protection of a
judicial order, interim or final. This kind of
arrangement certainly qualifies as an ad-hoc
arrangement; an ad-hoc appointment. (Para 11)

C.
U.P.
Collection
Amin
(Service)
7th
Amendment Rules, 2015 - The petitioner retired
from service on 31.7.2018. The 7th Amendment
Rules, which provided for a quota of 85% came into
force on 1.10.2015, whereas the impugned order
was passed on 8.10.2016. Thus, at the time when
the District Magistrate made the impugned order,
the petitioner's claim as a Seasonal Collection
Amin was to be reckoned on the basis of a
quota of 85%, and not 35%. The District
Magistrate held that the available vacancy relative to
the prescribed quota of 35% was full by 25.7.2016.
The impugned order, therefore, proceeds on a
reckoning of quota reserved for Seasonal Collection
Amins far short of the prescribed 85%. (Para 14)

Writ Petition allowed. (E-4)

Precedent mentioned:
730 INDIAN LAW REPORTS ALLAHABAD SERIES
1.PoshakiLal & ors., Vs. St. of U.P. & ors., Civil
Misc. W.P. No. 242 of 2001, decided on
16.04.2011 (Para 3)

## Text

12 All. Shri Ram Yadav Vs. State of U.P. & Ors.
729
made within 3 months from the date of
downloaded copy of the order from the
official website is served.

13. The writ petition is allowed.
----------
(2020)12ILR A729
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.11.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 60602 of 2016

Shri Ram Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Awadh Behari Singh, Sri Manish Singh,
Sri Rajesh Yadav

Counsel for the Respondents:
CS.C.

A. Service Law - The U.P. Collection Amin
Service Rules, 1974 - U.P. Regularization
of Ad-hoc (On posts outside the purview
of Public Service Commission) Rules,
1979-Regularization and Appointment

The petitioner's claim to regularization was
rejected under the Rules of 1974 as amended
by the 7th Amendment of 2015, on the ground
that 35% quota prescribed under the Rules for
Seasonal Collection Amins was already full by
25.7.2016. So far as the regularization under
the U.P. Regularization of Ad-hoc (On posts
outside
the
purview
of
Public
Service
Commission) Rules, 1979 (for short "Rules of
1979"), as amended by the 3rd Amendment
Rules, 2001, the petitioner was not eligible,
because he was not an Ad-hoc Amin, but
appointed in a Stop Gap arrangement, without
being selected through any process prescribed
by the Rules of 1974. (Para 7)

The Court, finds that the petitioner had been
permitted to continue, at one point of time,
under the umbrella of a judicial order, but not
for the whole of his service. He was permitted
by the respondents to continue in service,
against a sanctioned post, drawing regular
salary after 21.4.2004, without an interim order,
protecting his interest by permitting him to
continue in service. The petitioner retired on
attaining the age of superannuation, and in the
process, has rendered 28 years of service on the
post of Collection Amin. (Para 11)

B.
Difference
between
a
Stop
Gap
arrangement and Ad-hoc arrangement - A
Stop Gap arrangement, by its nature, is
something pro tem. It is not an arrangement
which can continue or ought to continue over a
period as long as 14 years. It cannot, therefore,
be gainsaid that the petitioner was not an adhoc employee, but a man, who filled in Stop
Gap. Ad-hoc means a kind of arrangement that
is not in accordance with the Rules, particularly
in the context of service jurisprudence. No
doubt, the petitioner was not selected in
accordance with the Rules, but he was allowed
to continue for a total period of 23 years, of
which, 14 were without the protection of a
judicial order, interim or final. This kind of
arrangement certainly qualifies as an ad-hoc
arrangement; an ad-hoc appointment. (Para 11)

C.
U.P.
Collection
Amin
(Service)
7th
Amendment Rules, 2015 - The petitioner retired
from service on 31.7.2018. The 7th Amendment
Rules, which provided for a quota of 85% came into
force on 1.10.2015, whereas the impugned order
was passed on 8.10.2016. Thus, at the time when
the District Magistrate made the impugned order,
the petitioner's claim as a Seasonal Collection
Amin was to be reckoned on the basis of a
quota of 85%, and not 35%. The District
Magistrate held that the available vacancy relative to
the prescribed quota of 35% was full by 25.7.2016.
The impugned order, therefore, proceeds on a
reckoning of quota reserved for Seasonal Collection
Amins far short of the prescribed 85%. (Para 14)

Writ Petition allowed. (E-4)

Precedent mentioned:
730 INDIAN LAW REPORTS ALLAHABAD SERIES
1.PoshakiLal & ors., Vs. St. of U.P. & ors., Civil
Misc. W.P. No. 242 of 2001, decided on
16.04.2011 (Para 3)

2. Mata Deen & ors. Vs. St. of U.P. & ors., 1996
(3) UPLBEC-2227 (Para 3)

Precedent followed:

1. Division Bench Judgment of Allahabad High
Court in Special Appeal (Defective) No. 483 of
2018 (Para 12, 13)

Present petition challenges order dated
08.10.2016, passed by District Magistrate,
Deoria.

(Delivered by Hon'ble J.J. Munir, J.)

1. Heard Mr. Awadh Behari Singh,
learned counsel for the petitioner and Mr.
Manvendra
Dixit,
learned
Standing
Counsel appearing on behalf of the
respondents.

2. The petitioner was a Collection
Amin, when he instituted this writ petition
on 19.12.2016. His appointment, however,
was ad-hoc. Working against a sanctioned
and vacant post of Amin, he was drawing a
regular monthly salary, until he retired
from service on 31.07.2018. The rights of
the petitioner in this petition are traceable
to and pegged at the time when the cause of
action
arose
and
he
brought
these
proceedings.
The
petitioner
calls
in
question an order of the District Magistrate,
Deoria dated 08.10.2016, by which, his
prayer, seeking regularization in service
and appointment to the post of Collection
Amin against which he was working, has
been rejected.

3. The petitioner was initially
appointed as a Seasonal Collection Amin
on 09.01.1990. He filed a writ petition
before the Lucknow Bench of this Court,
being Writ Petition No. 430 of 1991 (SS),
where an interim order was passed
directing that till further orders, the
respondents
shall
not
terminate
the
petitioner's services, so as to create an
artificial break, and further, that the
petitioner be continued in service. On
30.11.1990, the petitioner was placed
against the vacant post of Collection Amin,
by an order made by the Joint Magistrate,
Rudrapur, Deoria. This order was made by
the Joint Magistrate in compliance with this
Court's order dated 25.01.1991, and the
petitioner was placed against the vacant
post of one Ajay Kumar Singh, a
Collection Amin, who had been transferred
out. It is asserted by the petitioner that
pending Writ Petition No. 430 of 1991
(SS), the Additional District Magistrate
(Finance and Revenue) Deoria, cancelled
the order dated 13.11.1995 passed by the
Joint Magistrate. Thereupon, the petitioner
made an amendment application in the
pending writ petition before the Lucknow
Bench of this Court, where a prayer was
made
to
set
aside
the order dated
23.01.1996. By an interim order dated
11.04.1996 passed in Writ Petition No. 430
of 1996 (SS), this Court sitting at Lucknow,
stayed the operation of the order dated
23.01.1996 passed by the Additional District
Magistrate (Finance and Revenue) Deoria.
Writ Petition No. 430 of 1991 (SS) came up
for determination before this Court sitting at
Lucknow on 21.04.2004 and by an order of
that date, the writ petition was disposed of
on the same terms and conditions as ordered
in Civil Misc. Writ Petition No. 242 of
2001, Poshaki Lal & Others v. State of
U.P. and Others, decided on 16.04.2001. A
reference to the said decision shows that
Poshaki Lal (Supra), in turn, gave effect to
the decision in Mata Deen and others v.
State of U.P. and others1 and ordered in the
following terms :
12 All. Shri Ram Yadav Vs. State of U.P. & Ors.
731

However, in case junior to the
petitioners
have
been
regularized
as
alleged, then the case of the petitioners will
be considered with effect from the date of
regularization of that junior considering the
law that the right of the senior for
consideration of regularization is superior
in comparison to similarly circumstanced
junior. In case the petitioners are still
continuing he shall be allowed to continue
till the regularization/appointment on the
post of Collection Amin is considered with
the direction given above.

This writ petition is accordingly
disposed of with the direction contained in
the case of Mata Deen and others v. State
of U.P. and others (Supra).

4. The result of the said orders were
that the petitioner continued in service,
drawing a monthly salary. It is asserted that
he continued all this while on an ad-hoc
basis. The final seniority list of Collection
Amin was drawn by the Committee, on
09.04.2012. The U.P. Collection Amin
Service Rules, 19742 were amended in
2015 by the U.P. Collection Amin
(Service) 7th Amendment Rules, 20153. It
is pointed out that this seniority list did not
carry the petitioner's name in the main part
of the list. Instead, it carried at the foot of
the list, a separate list of six Collection
Amins including one Narsingh Mall, who
were continuing in service under orders of
this Court. The name of the petitioner
figures at Sr. No. 5 of this separate
appendage to the seniority list. The list
dated 09.04.2012 was forwarded by the
District Magistrate to the Government,
where age relaxation was granted on
13.06.2016. In consequence of this list
being forwarded, juniors to the petitioner
were appointed by the District Magistrate
as regular Collection Amins on 25.07.2016
and were posted to different tehsils by the
Additional District Magistrate (Finance and
Revenue),
Deoria
vide
order
dated
30.07.2016. This order of the District
Magistrate further excluded the petitioner.
The petitioner made a representation in the
matter on 05.01.2016 to the District
Magistrate, requesting that his case for
regularization
be
considered.
This
representation
was
not
attended
to.
Accordingly, the petitioner filed Writ - A
No. 32077 of 2016, claiming regularization
in service as a Collection Amin. This Court
disposed of Writ - A No. 32077 of 2016,
vide order dated 18.07.2016 in terms of the
following directions :

In this view of the matter, this writ
petition is disposed of with the consent of
the learned counsel for the parties with a
direction
to
the
respondent
no.2,
Collector/District
Magistrate,
District
Deoria to examine the claim of the
petitioner for regularization in the light of
the observations made above and in
accordance with law within a period of four
months from the date a certified copy of
this order is received in his office.

It is made clear that the Court has not
adjudicated the claim of the petitioner on
merit.

5. The District Magistrate, by the
impugned order dated 08.10.2016, has
rejected the petitioner's claim to regularize
him as a Collection Amin.

6. Aggrieved, this writ petition has
been filed.

7. A perusal of the impugned order
shows that the petitioner's claim to
regularization was rejected under the Rules
of 1974 as amended by the 7th Amendment
of 2015, on the ground that 35% quota
prescribed under the Rules for Seasonal
732 INDIAN LAW REPORTS ALLAHABAD SERIES
Collection Amins was already full by
25.07.2016. So far as the regularization
under the U.P. Regularization of Ad-hoc
(On posts outside the purview of Public
Service Commission) Rules, 19794, as
amended by the 3rd Amendment Rules,
2001, the petitioner was not eligible,
because he was not an Ad-hoc Amin, but
appointed in a Stop Gap arrangement,
without being selected through any process
prescribed by the Rules of 1974.

8. Mr. Awadh Behari Singh, learned
counsel for the petitioner, submits that so
far as first premise on which the impugned
order is founded, it is flawed, inasmuch as
all the Seasonal Collection Amin, who had
been
selected
until
25.07.2016
for
regularization,
were
juniors
to
the
petitioner as Seasonal Collection Amin. It
has been specifically asserted in Paragraph
7, 9 and 20 that Seasonal Collection Amins
appointed, subsequent to 1990, have been
regularized
on
different
dates.
The
candidates placed from Sr. No. 23 onwards,
in the seniority list of 7th July, are juniors
and their services have been regularized.
He submits, therefore, that there is no
ground to refuse that quota earmarked for
Seasonal Collection Amins, which was full
by 25.07.2016.

9. On the other limb of the
submission, it is urged that declining the
petitioner's claim, holding his appointment
to be one by way of Stop Gap arrangement,
and not ad-hoc, is also without basis. The
petitioner has continued against a vacant
post as long as 28 years and an engagement
that long cannot be said to be by way of
Stop Gap arrangement. Learned counsel
also submits that it is not merely by dint of
a judicial order that the petitioner has
continued for all these 28 years. The
protection of the judicial order vanished
after 21.04.2004, once Writ Petition No.
430 of 1991(SS) was disposed of. The
continuance of the petitioner against a
vacant post until he retired on 31.07.2018
was not ordered by any judicial interdict. It
was the respondents who permitted the
petitioner to continue all this while.

10. Learned Standing Counsel has
refuted the aforesaid submissions and
pointed out that in Paragraph 11 of the
counter affidavit, it is asserted that the
petitioner continued in service under the
umbrella of interim orders passed by this
Court. There is no explanation as to how
the petitioner continued after 21.04.2004,
whereafter there is no interim order in
operation, directing that the petitioner
ought to continue in service. It is urged by
learned Standing Counsel that the petitioner
has not been selected in accordance with
Rules, and thus, has no right to the post.
His case does not fall under the purview of
either the Rules of 1974 or the Rules of
1979.

11. This Court has considered the
rival submissions advanced on both sides.
The Court, on a perusal of the entire
circumstances, finds that the petitioner had
been permitted to continue, no doubt, at
one point of time, under the umbrella of a
judicial order, but not for the whole of his
service.
He
was
permitted
by
the
respondents to continue in service, against
a sanctioned post, drawing regular salary
after 21.04.2004, without an interim order,
protecting his interest by permitting him to
continue in service. The petitioner retired
on attaining the age of superannuation, and
in the process, has rendered 28 years of
service on the post of Collection Amin. To
dub this kind of an appointment as ad-hoc
and not Stop Gap, does not commend itself
to this Court. A Stop Gap arrangement, by
12 All. Shri Ram Yadav Vs. State of U.P. & Ors.
733
its nature, is something pro tem. It is not an
arrangement which can continue or ought
to continue over a period as long as 14
years. These 14 years was a period of time
when the petitioner was allowed to
continue as a Collection Amin, without the
protection of a judicial order, interim or
otherwise. It cannot, therefore, be gainsaid
that the petitioner was not an ad-hoc
employee, but a man who filled in Stop
Gap.
The
District
Magistrate
has
committed a manifest error to hold the
petitioner's services to be a Stop Gap
arrangement instead of an ad-hoc one. Adhoc means a kind of arrangement that is not
in accordance with the Rules, particularly
in the context of service jurisprudence. No
doubt, the petitioner was not selected in
accordance with the Rules, but he was
allowed to continue for a total period of 23
years, of which, 14 were without the
protection of a judicial order, interim or
final. This kind of arrangement certainly
qualifies as an ad-hoc arrangement; an adhoc appointment.

12. Learned counsel for the petitioner
has drawn attention of this Court towards
the fact that Narsingh Mall, who is
similarly circumstanced as the petitioner,
was also declined regular selection by the
Selection Committee constituted under the
Rules of 1974 and it was held by the
Collector that his appointment was not adhoc, but one by way of a Stop Gap
arrangement. This Court, in Writ - A No.
31326 of 2016, filed by Narsingh Mall,
who is similarly circumstanced as the
petitioner, held that the petitioner, having
continued against a clear vacancy until time
that he retired, his appointment is to be
regarded as ad-hoc and being one made
prior to 30.06.1998, entitled him to
regularisation under the 3rd Amendment
Rules, 1998. In the present case too, the
petitioner has continued on an ad-hoc basis
since 1995 against a clear vacancy, until he
superannuated on 31.07.2018.

13. In opinion of this Court, his case
would clearly fall within the purview of the
3rd Amendment Rules, 2001. The decision
of learned Single Judge in Writ - A No.
31326 of 2016, allowing the writ petition
and
directing
Narsingh
Mall's
regularization on the post of Collection
Amin under the Rules of 2001, has been
affirmed by a Division Bench of this Court
in Special Appeal (Defective) No. 483 of
2018. The decision of the Division Bench
in the case last mentioned, would, on
principle also, apply to the petitioner's case,
as would the decision of learned Single
Judge in Writ - A No. 31326 of 2016.

14. Insofar as the petitioner's claim to
regulation under the 7th Amendment Rules
is concerned, a perusal of the last
mentioned proviso those Rules shows that
on the commencement of these rules as a
one-time measure, 85% of the existing
vacancies have to be filled up by selection
from amongst the Seasonal Collection
Amins otherwise eligible. The petitioner
retired from service on 31.07.2018. The 7th
Amendment Rules came into force on
01.10.2015, whereas the impugned order
was passed on 08.10.2016. Thus, at the
time when the District Magistrate made the
impugned order, the petitioner's claim as a
Seasonal Collection Amin was to be
reckoned on the basis of a quota of 85%,
and not 35%. A perusal of the impugned
order shows that the District Magistrate
proceeded on the supposition that there was
a quota of 35% for appointment of
Seasonal Collection Amins against the
available vacancy in the cadre. She held
that the available vacancy relative to the
prescribed quota of 35% was full by
734 INDIAN LAW REPORTS ALLAHABAD SERIES
25.07.2016. The impugned order, therefore,
proceeds on a reckoning of quota reserved
for Seasonal Collection Amins far short of
the prescribed 85%. The impugned order,
therefore, is seriously flawed on this score
as well.

15. In this view of the matter, this
Court is of opinion that the impugned order
passed by the District Magistrate, Deoria
dated 08.10.2016, cannot be sustained and
is liable to be quashed.

16. In the result, this writ petition
succeeds and is allowed. The impugned
order dated 08.10.2016 passed by the
District Magistrate, Deoria is hereby
quashed. It is ordered that the petitioner
shall be treated to be regularized on the
post of Collection Amin, under the 3rd
Amendment Rules, 2001, which shall be
done notwithstanding his superannuation
on 31.07.2018. Moreover, the petitioner
will also be entitled to his post-retiral
benefits in accordance with the Rules of
1974.

17. There shall be no order as to costs.
----------
(2020)12ILR A734
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.12.2020

BEFORE

THE HON'BLE SAURABH SHYAM SHAMSHERY, J.

Criminal Appeal No. 781 of 1983

Harish Chand & Ors. ...Appellants (In Jail)
Versus
State of U.P. ...Opp. Party

Counsel for the Appellants:
Sri Sanjiv Rohit, Sri Abhai Saxena, Sri Sandeep
Kumar Srivastava, Sri D.P.S. Chauhan
Counsel for the Opp. Party:
A.G.A.

(अ) फौजदारी कानून - दोष सिद्ध के खिलाफ - भारतीय
दंड िंसिता, 1860 - धारा 307 - ित्या करने का प्रयत्न,
धारा 34 - िामान्य आशय को अग्रिर करने में कई
व्यखियों द्वारा सकए गए कायय - आरोपी व्यखियों का
अपराध करने का िामान्य आशय था या निीं इिका
सनष्कषय , पररखथथसतयों की िमग्रता को ध्यान में रिकर िी
सकया जा िकता िै - अपराध की गंभीरता को भी िी
सिसभन्न कारकों की किौटी पर िुसनसित सकया जाना
चासिए । ( पैरा - 22,26)

वतयमान आपराजधक अपील तीनोां अपीलाथी/अपराधी ,
अपीलाथी सां० 1(मृत्यु) को धारा 307 िा० दां० सां० व
अपीलाथी सां० 2 (िीवांत) व अपीलाथी सां० 3 (मृत्यु) को
धारा 307/ 34 िा० दां० सां० के अांतगयत दोर् जसद्ध घोजर्त
जकया था - सिी अपीलाथी को 4 वर्य का सश्रम कारावास
- व्यजथत होकर आपराजधक अपील इस न्यायालय में
दाक्तखल की ।

जनणय : तीनोां अजियुक्तोां ने पीजड़त की हत्या का प्रयत्न
काररत करने के सामान्य आशय के अग्रसर में कायय
जकया, अतः धारा 307 अपजठत धारा 34 िारतीय दांड्
सांजहता के अांतगयत दोर् जसद्ध जकए गए हैं , जिसमें कोई
जवजधक त्रुजट नहीां है । िीवांत अपीलाथी पर प्रबोजधत करने
का आरोप है ।उसने कोई आपराजधक बल का प्रयोग नहीां
जकया और न ही उसका कोई जघनौना चररत्र प्रकट होता है
। अन्य दो अपीलाथी, जिसमें से एक पर गोली चलाने का
आरोप जसद्ध हुआ था, जक मृत्यु हो चुकी है। अपीलाथी का
कोई और आपराजधक इजतहास नहीां बताया गया है ।
इसके अजतररक्त जक अपराध 1981 में गजठत हुआ था
वतयमान में अपीलाथी की उम्र करीब 60 वर्य को िी
मद्देनिर रखना चाजहए । दांड् की सिा की अवजध िो 4
वर्य है उसको अब तक व्यतीत सिा की अवजध में
पररवजतयत जकया िाए वह प्रजतकर के रूप में एक लाख
पीजड़ता साक्षी को जदलवाया िाए तथा अपीलाथी सांख्या 2
की सिा िो अब तक करीब 36 जदन तक व्यतीत की है ,
की अवजध में पररवजतयत की िाती है । (पैरा - 22,26,27)

आपराजधक अपील आांजशक रूप से स्वीकायय। (E-7)

उि्धृत मामल िं की ूची :-

1. मनु दत्त एवां एक अन्य बनाम उत्तर प्रदेश शासन
(2012)4 एि िी िी 79

2. िीरेंद्र बनाम िररयाणा राज्य, (2020) 2 एििीिी 700)