# Smt. Prakashwati v. The State of U.P. and others

- **Citation:** (2004) 1 ILRA 86
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-08-26
- **Case number:** Civil Misc. Writ Petition No. 16596 of 1999
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-prakashwati-v-the-state-of-u-p-and-others-40298
- **Pages:** 5

## Headnote

Constitution of India, Article 16-
A. Service Law-Appointment-on adhoc
basis
or
as
daily
wager-without
following procedure prescribed by law
held violation of article 13 and 16 of
Constitution-such
practice
highly
depreciated by such appointments-made
on extraneous consideration to oust the
meritorious
candidates-cant
not
be
regularized.

Held: Para 9

Adhoc appointment or on daily wages,
without following the procedure also
violates the Article 14 and 16 of the
Constitution as such appointment are
made
on
extraneous
consideration,
which oust the meritorious and the
eligible candidates. The amounts to back
door
entry
and
the
courts
have
deprecated such practice.

B. Service Law-Regularisation-petitioner
appinted temporarily-under particular
scheme-has no enforceable right for
regularization.

Held: Para 7
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1 All] Smt. Prakashwati V. The State of U.P. and others
87

It is settled law that an employee
appointed under a particular scheme has
no enforceable right in a Court for
regularization of his appointment. No
vested
right
is
created
temporary
appointment.
Case Law discussed:
AIR 1990 SC 2228
1993 (2) SCC 213
AIR 1995 SC 962
AIR 1994 SC 1654
1995(1) SCC 138
1995 (Suppl) 4 SCC 706
1996 (7) SCC 118
1997 (6) SCC 574

## Text

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86
that the selection made was illegal, the
learned
Standing
Counsel
has
not
adverted attention to any documentary
evidence to shore up his contention. On
the contrary it would transpire from
perusal of the impugned order refusing
approval that refusal was actuated by
Ordiance
2212
of
1985
and
in
quintessence, it follows from the said
order that refusal had its basis in the
provisions of U.P. Act no. 19 of 1985 and
the Regional Inspectress did not record
any other reason in relation to the validity
of the selection of the petitioner. In view
of the fact that there was no reserve pool
candidate and upon regard being had that
U.P.
Secondary
Education
Services
Selection Boards Act, 1982 cannot be
invoked
in
aid
for
application
to
appointment of B.T.C. Grade teacher and
also in view of the fact that it has not been
successfully
established
that
the
appointment of petitioner suffered from
any illegality permeating her selection
and appointment apparent on the fact of
record, In converge to the conclusion that
the impugned orders cannot be sustained
in law and are liable to be quashed.

6. As a result of foregoing
discussion, the petition succeeds and is
allowed. The impugned orders dated
24.2.1987 and 13.3.1987 passed by
respondents 2 and 3 respectively are
quashed and it is in consequence observed
that the petitioner shall be deemed to be
regularly appointed B.T.C. grade teacher.
It needs hardly be said that the Regional
Inspectress
of
Girls
School/District
Inspector of Schools concerned shall pass
appropriate orders to accord financial
approval in relation to the appointment of
the petitioner and she shall be paid salary
from the date of her initial appointment
upto the period she actually worked, in
accordance with law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED:ALLAHABAD 26.08.2003

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 16596 of 1999

Vishun Dayal

...Petitioner
Versus
District Registrar, Mainpur ...Respondent

Counsel for the Petitioner:
Sri Govind Krishna

Counsel for the Respondent:
S.C.

Constitution of India, Article 16-
A. Service Law-Appointment-on adhoc
basis
or
as
daily
wager-without
following procedure prescribed by law
held violation of article 13 and 16 of
Constitution-such
practice
highly
depreciated by such appointments-made
on extraneous consideration to oust the
meritorious
candidates-cant
not
be
regularized.

Held: Para 9

Adhoc appointment or on daily wages,
without following the procedure also
violates the Article 14 and 16 of the
Constitution as such appointment are
made
on
extraneous
consideration,
which oust the meritorious and the
eligible candidates. The amounts to back
door
entry
and
the
courts
have
deprecated such practice.

B. Service Law-Regularisation-petitioner
appinted temporarily-under particular
scheme-has no enforceable right for
regularization.

Held: Para 7
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1 All] Smt. Prakashwati V. The State of U.P. and others
87

It is settled law that an employee
appointed under a particular scheme has
no enforceable right in a Court for
regularization of his appointment. No
vested
right
is
created
temporary
appointment.
Case Law discussed:
AIR 1990 SC 2228
1993 (2) SCC 213
AIR 1995 SC 962
AIR 1994 SC 1654
1995(1) SCC 138
1995 (Suppl) 4 SCC 706
1996 (7) SCC 118
1997 (6) SCC 574

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard counsel for the parties and
perused the record.

2. Counsel for the petitioner urges
that petitioner was engaged in the office
of
Sub-Registrar,
Karawali
Distt.
Mainpuri as waterman since 08.08.1991.
Subsequently a Vacant post of Class IV
employee (Peon) arose on account of the
death of one peon namely Punni Lal, who
expired on 04.12.1993. The petitioner
alleged that on the death of Punni Lal,
though the respondents have appointed
other person also he was permitted to
discharge duties of Class IV employee but
he has not been paid salary, as admissible
to such employee.

3. Aggrieved the petitioner filed
Civil Misc. Writ Petition No. 3372 of
1998,
in
which
this
court
passed
following order on 23.10.1998.

"Heard the petitioner as prayed for
regularsiation. This petition is disposed of
with direction to the authorities/concerned
to decide petitioner's representation he
may
make
within
two
months
in
accordance with law. S/d M. Katju"

4.

The
Petitioner
thereafter
submitted
representation
dated
10/12/1998 and respondents have rejected
the same vide order dated 27/02/1999.
The petitioner has prayed for quashing the
order dated 27/02/1999. Annexure-9 to
the Writ Petition and also for issue of writ
in the nature of mandamus directing
respondents to regularize his services.

5. The petitioner placed reliance on
following passage in case of Jackob M
Puthuparambil
Vs.
Kerala
Water
Authority and others AIR 1990 SC
2228:-

"If the Rule is so interpreted it seems
clear to us that employees who have been
working on the establishment since long,
and
who
possess
the
requisite
qualification for the job as obtaining on
the date of their employment must be
allowed to continue on their jobs and their
services should be regularized. It is unfair
and unreasonable to remove people who
have
been
rendering
service
since
sometime as such removal has serious
consequences.
The
family
of
the
employee, which has settled down, and
accommodated
its
needs
to
the
emoluments received by the breadwinner,
will face economic ruination if the job is
suddenly
taken
away.
Besides,
the
precious period of early life devoted in
the service of the establishment will be
wholly wasted and the incumbent may be
rendered age barred for securing a job
elsewhere. It is indeed unfair to use him,
generate hope and a feeling of security in
him, and attune his family to live within
his earnings and then suddenly to throw
him out of job. Such behavior would be
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
88
an affront to the concept of job security
and
would
run
counter
to
the
constitutional philosophy, particularly the
concept of job security and would run
counter to the constitutional philosophy,
particularly the concept of right to work
in Art. 41 of the constitution. Therefore, if
we interpret Rule 9 (1) (i) consistently,
which it is permissible to do without
doing violence to the said rule, it follows
that employees who are serving on the
establishment for long spells and have the
requisite qualifications for the job should
not be thrown out but their services
should be regularized as far as possible.
Since works belonging to this batch have
worked on their posts for reasonably long
spells they are entitled to regularization in
services"

6. However, where an appointment
made by the State is without competence
or without following the procedure
prescribed by law, the incumbent cannot
claim any right. In such cases the contract
of services is not enforceable in law. Any
Adhoc appointment made by the authority
be
regularized
according
to
rules,
provided that the incumbent has eligibility
qualification
of
the
posts.
If
the
incumbent has continued for long, the
vacancy should be filled up on permanent
basis in accordance with law and the
person working on adhoc basis may also
be considered in accordance with rules for
regularization. The employer must fill up
those posts by a permanent appointment
in accordance with the Rules rather than
allow such adhoc basis may also be
considered in accordance with rules for
regularization. The employer must fill up
those post by a permanent appointment in
accordance with the rules rather than
allow
such
adhoc
appointments
to
continue for years together.

7. It is settled law that an employee
appointed under a particular scheme has
no enforceable right in a Court for
regularization of his appointment. No
vested
right
is
created
temporary
appointment.

8.

The
Practice
of
making
appointment
without
advertising
the
vacancies or calling the names from the
Employment
Exchange
violates
the
fundamental right of the eligible persons.

9. Adhoc appointment or on daily
wages, without following the procedure
also violates the Article 14 and 16 of the
Constitution as such appointment are
made on extraneous consideration, which
oust the meritorious and the eligible
candidates. The amounts to back door
entry and the courts have deprecated such
practice.

10. In Dr. M.A. Haque and others
Vs. Union of India and others, 1993 (II)
SCC 213 the Supreme Court observed:

We cannot lose sight of the fact that
the recruitment rules made under Article
309 of the constitution have to be
followed strictly and not in breach. If
disregards of the rules and by passing of
the Public Service Commissions are
permitted, it will open a back door for
illegal recruitment without limit. In fact
this Court has, of late, been witnessing a
constant violation of the recruitment rules
and a scant respect for the constitutional
provision requiring recruitment to the
services through the Public Service
Commission. It appears that since this
court has in some cases permitted
regularization of the irregularly recruited
employees,
some
governments
and
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1 All] Vishun Dayal V. District Registrar, Mainpuri
89
authorities
have
been
increasingly
resorted to irregular recruitment., The
result had been that the recruitment rules
and the Public Service Commissions have
been kept in cold storage and candidates
dictated by various considerations are
being recruited as a matter of course.

11.
In
Dr.
Arundhati
A
Pargaonkar Vs. State of Maharashtra
AIR 1995 SC 962, it has been held that:

Nor the claim of the appellant, that
she having worked as Lecturer without
breaks for 9 years on the date the
advertisement was issue. She should be
deemed to have been regularized appears
to be well founded. Eligibility and
continuous working for howsoeverlong
period should not be permitted to over
reach the law. Requirement of rules of
selection cannot be substituted by humane
consideration. Law must take its course.

12. The Apex Court deprecated the
practice of making the appointment
beyond the rules and rejected the claim
on several occasions. The question has
also been considered in the following
judgments viz; Smt. Ravindre Sharma
and another Vs. State of Punjab and
others, 1995 (1) SCC 138, Smt. Harpal
Kaur Chahal Vs. Director Punjab
Instructions, 1995 (Suppl) 4 SCC 706;
State of Madhya Pradesh Vs. Shyama
Pardhi 1996 (7) SCC 118, State of
Rajasthan Vs. Hitendra Kumar Bhatt,
1997 (6) SCC 574 etc.

13. In State of U.P. and others Vs.
U.P. State Law Officers Association
and others, AIR 1994 SC 1654, it has
been observed as under:

This being so those who come to be
appointed by such arbitrary procedure can
hardly complain if the termination of their
appointment is equally arbitrary. Those
who come by the back door have to go by
the same door. The fact that they are
made by public bodies cannot vest them
with
additional
sanctity.
Every
appointment made to a public office,
howsoever made, is not necessarily vested
with public sanctity. There is, therefore,
no public interest involved in saving all
appointment irrespective of their mode.
From the inception some engagements
and contracts may be the product of the
operation of the spoils system. There need
be no legal anxiety to save them.

14. It is not in dispute that services
of the petitioner were temporary and
adhoc and his services have been
terminated as far back in 1998. The
counsel for the petitioner heavily relied
upon the judgment given by Division
Bench of this court in Special Appeal No.
532 of 1997, in which order was passed
on 28/07/1997 for regularization of
services of employees in accordance with
Govt. order dated 09/01/1985. The
petitioner contends that he is fully eligible
and liable to be regularized. Service of the
petitioner have already been terminated,
as such prayer for regularization cannot
be granted. In so far as quashing the
termination order is concerned, learned
counsel for the petitioner has failed to
point out any illegality or infirmity in the
order impugned.

15. For reasons stated above, it is
not a fit case for interference under Art.
226 of the Constitution. The Writ petition
fails and is dismissed and there is no order
as to costs.
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.09.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE UMESHWAR PANDEY, J.

Civil Misc.Writ Petition No. 1073 of 2003

Banda Tent House Association ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Siddharth Srivastava
Sri Shashi Nandan

Counsel for the Respondents:
S.C.

U.P. Trade Tax Act-Section 3 F and
Constitution of India Article 366 Clause
29 A-Petitioner a Tent House-business
relating supply of chair, tent, pillows,
bed sheets etc. in different partieswhether liable to pay Trade Tax U/S 3 F
read with Article 366 clause 29 A of the
Constitution?-Held 'yes'.

Held- Para 8

Thus section 3 F is clearly within the
ambit of Clause 29 A of Article 366 of the
Constitution and hence where there is a
transfer of a right of use of any goods for
cash or deferred payment or other
valuable consideration it is deemed to be
a sale within the meaning of the U.P.
Trade Tax Act. Thus section 3 F and
clause 29 A of Article 366 of the
Constitution have introduced a legal
fiction. Legal fiction are well known in
law and there can be no objection to the
same.
Case law discussed:
(2002) 3 SCC 314
2003 UPTC 404

(Delivered by Hon'ble M. Katju, J.)

1. This writ petition has been filed
with a prayer for a mandamus directing
the respondent Trade Tax authorities not
to take any action against the petitioner
and its members under the provisions of
the U.P. Trade Tax Act as they are not
dealers covered by the Act.

2. Since the question involved in this
case is a purely legal one we did not deem
it necessary to call for a counter affidavit
and hence after hearing learned counsel
for the petitioner and learned standing
counsel we reserve judgement.

3. In paragraph 3 of the petition it is
alleged that the petitioner is a Association
of members involved in the activity of
giving articles such as chairs, tents,
pillows, bed sheet, crockery etc. to other
persons and other members of the
Association for the use of specific
purposes, but the effective control always
remains with the Tent House owner or
owner of the other articles and the person
using the same is not free to use it for any
purpose than the one for which it is given
e.g. Marriage, birthday party etc. It is
alleged in paragraph 4 of the petition that
all the above articles given for use always
remain in the custody of the owner
through its agents who have effective
control of the articles. The owner charges
hire charges from the users for the same.
By means of this petition the petitioner
has challenged the validity of the decision
taken by the respondents for imposing
Trade Tax from the members of the