# Smt. Yashoda Devi & Ors v. State of U.P. & Ors

- **Citation:** (2022) 3 ILRA 937
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-25
- **Case number:** Writ A No. 2615 of 1998
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-yashoda-devi-ors-v-state-of-u-p-ors-48267
- **Pages:** 7

## Headnote

A. Service Law - Uttar Pradesh Krishi
Evam
Prodyogik
Vishwavidyalaya
Adhiniyam, 1988 - As per the interim order,
the petitioners have been drawing revised pay
scale of Rs. 1200-2040/- after it was sanctioned
938 INDIAN LAW REPORTS ALLAHABAD SERIES
to them in the year 1991. Thus, for 31 years,
the petitioners have been paid revised pay
scale. The University itself has granted revised
pay scale to some of the Lab Assistants as
mentioned above. Even pay committee has
recommended the identical pay scale to the Lab
Assistants in Government Departments and
other institutions which was Rs. 1200-2040/-
(Revised Rs. 4000-6000/-). The audit objection,
which was the basis for withdrawing the pay
scale of Rs. 1200-2040, was removed and the
very ground for issuing the GO vide order dated
28th April, 1998 got vanished after removal of
the audit objection. It is not in dispute that the
Lab Assistants working in the other Government
Departments were in the pay scale of Rs. 12002040/- with effect from 1st January, 1986 and,
thereafter Rs. 4000-6000/- in the sixth pay
scale. The petitioners are duly appointed having
requisite qualifications for the post of Lab
Assistant and they have been working for fairly
long time and some of them have retired and
others are on the verge of retirement. At this
stage, it would be unjust and improper to
decline the pay scale of Rs. 1200-2040/-
(revised from time to time). (Para 29)

The present writ petition is allowed. The
petitioners in this writ petition are entitled to
pay scale of Rs. 1200-2040/- w.e.f. the date of
interim order i.e. 22nd June, 1998 (revised from
time to time). (Para 30)

Writ petition allowed. (E-4)

Present petition prays for quashing of
order
dated
28.04.1998,
issues
by
Government.

## Text

3 All. Smt. Yashoda Devi & Ors. Vs. State of U.P. & Ors.
937
appointment and adequate number of
candidates are found fit, the successful
candidates acquire an indefeasible right to
be appointed which cannot be legitimately
denied. Ordinarily the notification merely
amounts to an invitation to qualified
candidates to apply for recruitment and on
their selection they do not acquire any right
to the post. Unless the relevant recruitment
rules so indicate, the State is under no legal
duty to fill up all or any of the vacancies.
However, it does not mean that the State
has the licence of acting in an arbitrary
manner. The decision not to fill up the
vacancies has to be taken bona fide for
appropriate reasons. And if the vacancies or
any of them are filled up, the State is bound
to respect the comparative merit of the
candidates, as reflected at the recruitment
test,
and
no
discrimination
can
be
permitted. This correct position has been
consistently followed by this Court, and we
do not find any discordant note in the
decisions in State of Haryana v. Subash
Chander Marwaha, Neelima Shangla v.
State of Haryana or Jatinder Kumar v. State
of Punjab"
34. In the instant case, the petitioner had
merely faced interview and the selection
process had not even been completed. The
respondents issued a fresh advertisement on
the ground that they could not get
candidates
possessing
the
prescribed
eligibility qualification in response to the
earlier advertisement, which is a valid
reason and which is not arbitrary or
unreasonable. Therefore, the appellantpetitioner had no indefeasible right to be
selected in pursuance of the earlier
advertisement issued on 18-12-2006 and
the contention of the petitioner in this
regard is liable to be rejected.

35. The Hon'ble Single Judge has
rightly held that the petitioner had the
opportunity of participating in the selection
process held pursuant to the subsequent
advertisement issued in the year 2007 but
he chose not to do so. In the Writ Petition
challenging the advertisement issued in the
year 2007, no relief can be granted at this
distant point of time, particularly keeping
in view the fact that the petitioner did not
have any indefeasible right for appointment
merely on the ground that he had faced the
interview.

36. In view of the aforesaid
discussion, the Special Appeal lacks merit
and is liable to be dismissed.

37. Accordingly, the Special Appeal
is dismissed. Costs made easy.
----------
(2022)03ILR A937
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.02.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Writ A No. 2615 of 1998

Smt. Yashoda Devi & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Kapil Deo, Sri Abhishek Yadav, Sri
Ashwani Kumar

Counsel for the Respondents:
C.S.C., Sri K.P. Tripathi, Sri Manik Sinha, Sri
N.K. Seth, Sri R.C. Srivastava, Sri Sudeep
Seth, Sri Uttam Kumar Verma

A. Service Law - Uttar Pradesh Krishi
Evam
Prodyogik
Vishwavidyalaya
Adhiniyam, 1988 - As per the interim order,
the petitioners have been drawing revised pay
scale of Rs. 1200-2040/- after it was sanctioned
938 INDIAN LAW REPORTS ALLAHABAD SERIES
to them in the year 1991. Thus, for 31 years,
the petitioners have been paid revised pay
scale. The University itself has granted revised
pay scale to some of the Lab Assistants as
mentioned above. Even pay committee has
recommended the identical pay scale to the Lab
Assistants in Government Departments and
other institutions which was Rs. 1200-2040/-
(Revised Rs. 4000-6000/-). The audit objection,
which was the basis for withdrawing the pay
scale of Rs. 1200-2040, was removed and the
very ground for issuing the GO vide order dated
28th April, 1998 got vanished after removal of
the audit objection. It is not in dispute that the
Lab Assistants working in the other Government
Departments were in the pay scale of Rs. 12002040/- with effect from 1st January, 1986 and,
thereafter Rs. 4000-6000/- in the sixth pay
scale. The petitioners are duly appointed having
requisite qualifications for the post of Lab
Assistant and they have been working for fairly
long time and some of them have retired and
others are on the verge of retirement. At this
stage, it would be unjust and improper to
decline the pay scale of Rs. 1200-2040/-
(revised from time to time). (Para 29)

The present writ petition is allowed. The
petitioners in this writ petition are entitled to
pay scale of Rs. 1200-2040/- w.e.f. the date of
interim order i.e. 22nd June, 1998 (revised from
time to time). (Para 30)

Writ petition allowed. (E-4)

Present petition prays for quashing of
order
dated
28.04.1998,
issues
by
Government.

(Delivered by Hon'ble Dinesh Kumar
Singh, J. )

1. The petitioners, who were
employed as Lab Assistant in the Acharya
Narendra Dev University of Agriculture
and Technology, Kumarganj, Faizabad
(now Ayodhya) (hereinafter referred to as
'the University'), have filed this writ
petition impugning the order dated 27th
May, 1998 whereby pay scale sanctioned to
the petitioner @ Rs.1200-2040/- against
Rs.950-1500/-
vide
order
dated
4th
October, 1991 was cancelled by the Vice
Chancellor of the University on the ground
that the State Government vide order dated
28th April, 1998 had directed for stopping
payment of pay scale of Rs.1200-2040/- to
the post of Lab Assistant working in the
University.

2. The petitioners have also prayed
for quashing of the order dated 28th April,
1998 issued by the Government directing
for stopping of the pay scale of Rs.12002040/-.

3. The petitioners have also prayed
for a writ in the nature of mandamus
commanding
the
respondents/opposite
parties to allow them pay scale of Rs.12002040/- with consequential benefits.

4. It is stated that the petitioners were
appointed
as
Lab
Assistant
in
the
University between 1980 and 1988, details
of which have been given in para 3 of the
writ petition.

5. Initially, four posts of Lab
Assistant were created by the Board of
Management of the University in the pay
scale of Rs.200-320/-. Subsequently, with
effect from 1st July, 1979, the pay scale
was revised to Rs.354-550/- and, thereafter,
it was revised to Rs.950-1500/- with effect
from 1st January, 1986.

6. Since Lab assistants in Chandra
Shekhar Azad Agriculture and Technical
University, Kanpur and Gobind Ballabh
Pant Agriculture and Technical University,
Pantnagar,
Uttarakhand,
two
other
agricultural universities in the State, were
receiving revised pay scale of Rs.12002040/-, the Lab Assistants working in the
3 All. Smt. Yashoda Devi & Ors. Vs. State of U.P. & Ors.
939
University went on strike in the year 1991
making a demand of revised pay scale of
Rs.1200-2040/- instead of Rs.950-1500/-.
Finance State Committee constituted by the
State Government in the University in its
meeting dated 11th September, 1991
recommended the amendment in the pay
scale of Lab Assistants in the University,
on the basis of report of Samata Samiti on
the premise that there had been an error in
fixation of pay scale of Lab Assistant in the
University.

7. The Board of Management in its
meeting dated 12th September, 1991
resolved to sanction the new pay scale of
Rs.1200-2040/- for the post of Lab
Assistant with effect from 1st January,
1986, in anticipation of the approval of the
State
Government.
The
Board
of
Management in its resolution dated 12th
September, 1991 said that new pay scale of
Rs.1200-2040/- was sanctioned tentatively
to the post of Lab Assistant. As per the
resolution of the Board of Management, the
Vice Chancellor vide order dated 4th
October, 1990 gave new pay scale of
Rs.1200-2040/- to the Lab Assistants
provisionally in anticipation of the approval
from the State Government.

8. The State Government, however,
vide impugned order dated 28th April,
1998 declined to approve the pay scale of
Rs.1200-2040/- to the Lab Assistant and,
thereafter the University vide order dated
27th May, 1998 cancelled the earlier order
dated 4th October, 1991 and directed
payment of earlier pay scale of Rs.9501500/- to the Lab Assistant.

9.

The
petitioners,
therefore,
aggrieved by the said two orders, had filed
this writ petition and this court vide interim
order dated 22nd June, 1998 directed the
respondents to pay salary to the petitioners
on the basis of scale which they were
getting earlier (Rs.1220-2040/-) up to June,
1998. It was said that this order would be
subject to the decision passed later on if
any. The said interim order has been
remained in operation till date.

10. During pendency of the writ
petition, some of the petitioners had
attained the age of superannuation and
some of them had died. Retirement dues
were not paid to the petitioners, who had
got retired and this Court, therefore, vide
order dated 26th November, 2013 directed
for granting retirement benefits to the
employees, who had attained the age of
superannuation or died.

11. Heard Mr. Kapil Deo, learned
Senior Advocate assisted by Mr.Ashwini
Kumar, learned counsel for the petitioners,
Mr.Sanjay Mishra, learned Additional
Chief Standing Counsel for the State and
Mr.Uttam Kumar Verma, learned counsel
appearing for respondent Nos.3 and 4

12. Mr. Kapil Deo, learned Senior
Advocate assisted by Mr.Ashwini Kumar,
learned counsel appearing for the petitioners
has
submitted
that
three
agriculture
universities were established namely Chandra
Shekhar Azad Agriculture and Technical
University, Kanpur, Gobind Ballabh Pant
Agriculture
and
Technical
University,
Pantnagar,
Uttarakhand
and
Acharya
Narendra Dev University of Agriculture and
Technology, Kumarganj, Faizabad in the
State of U.P. by the State Government and
services of the employees, teachers and other
staff of all the three universities were
governed by the Uttar Pradesh Krishi Evam
Prodyogik
Vishwavidyalaya
Adhiniyam,
1988 and the Statutes and Regulations framed
thereunder. He has submitted that with effect
940 INDIAN LAW REPORTS ALLAHABAD SERIES
from 1st January, 1986 pay scale of the Lab
Assistant
in
Chandra
Shekhar
Azad
Agriculture
and
Technical
University,
Kanpur and Gobind Ballabh Pant Agriculture
and
Technical
University,
Pantnagar,
Uttarakhand was revised to Rs.1200- 2050/-
vide Government Order dated 27th January,
1990 and 4th February, 1990 respectively.

13. Vetan Samata Samiti, on 7th
November,
1998
after
making
a
comprehensive study in respect of the posts
existing
in
the
State
Government
Departments, Educational Institutions, Local
Bodies and District Board, recommended that
the posts having different pay scale be
merged and granted pay scale of Rs.12002040/-. Samta Samiti had recommended pay
scale of Rs.1220-2040/- for the post of Lab
Assistant in Medical Department having
Intermediate (Science) qualification, even in
Horticulture Department pay scale of Lab
Assistant was revised to Rs.1200-2040/-.

14. Learned Senior Advocate has
further submitted that Lab Assistants of two
other agriculture universities and medical
department were sanctioned pay scale of
Rs.1200-2040/- except for the Lab Assistants
of the University.

15. It is relevant to note here that a
notification
was
issued
on
12/19th
November, 1993 whereby the Chancellor
granted sanction auditing Chapter X(A) of
the Statute which reads as under:-

" Scale of pay, Allowances,
Pension/Gratuity, Provident Fund, Insurance
and other service benefits:-

"The scale of pay allowances and
other emoluments the rules of pension
including family pension, gratuity general
or contributory provident fund, Insurance
and other service benefit for teachers,
officials and employees of the University
will be the same as per Government orders
issued on the subject from time to time."

16. Learned Senior Advocate has
further submitted that during pendency of
this writ petition, the petitioners at Serial
Nos.33, 35, 36 namely, Mr.Brijendra
Kumar Singh, Mr.Anil Kumar Singh and
Mr.Kedar Yadav got regularized by the
opposite parties vide order dated 4th June,
2003 on the post of Lab Assistant in the
pay scale of Rs.4000-6000/- (revised from
Rs.1200-2040/-). Thereafter, vide orders
dated 30th June, 2003 and 15th April,
2004, two other petitioners placed at Serial
Nos.37 and 34 namely, Mr.Krishna Kant
Singh Yadav and Mr.Krishna Kumar were
also regularized in the pay scale of
Rs.4000-6000/-. Two other Lab Assistants
namely, Smt. Kusum Lata Chauhan and
Smt. Mithlesh were also regularized vide
order dated 31st March, 2005 on the post of
Lab Assistant in pay scale of Rs.40006000/- in compliance of the orders of this
Court dated 16th April, 2002 passed in
Writ Petition No.4677(SS) of 2002: Merai
versus State of UP & Ors.

17. It has been further submitted that
the opposite parties have been adopting
pick and choose policy to regularize some
of the Lab Assistants in the pay scale of
Rs.4000-6000/- whereas the petitioners
were not regularized in the same pay scale
and thus, the opposite parties have
discriminated against the petitioners.

18. It has been further submitted that
the State Government wrote a letter dated
13th March, 1996 to the Vice Chancellor of
the University intimating that the pay scale of
Rs.1200-2040/- against pay scale of Rs.9751540/- had been illegally allowed by the
3 All. Smt. Yashoda Devi & Ors. Vs. State of U.P. & Ors.
941
University to the Lab Assistant and the said
illegality in allowing the pay scale of
Rs.1200-2040/- against the pay scale of
Rs.975-1540/- had been figured in the audit
objection. Therefore, it was directed that
immediate necessary action should be taken
for stopping the payment of salary in the pay
scale of Rs.1200-2040/-. Another letter was
written
by
the
Government
on
27th
November, 1996 requesting the ViceChancellor to take rectificatory measures in
the matter and send compliance report to the
Government. It has been further submitted
that the sole ground for Government's
objection and direction for stopping the
payment of pay scale of Rs.1200-2040/- was
the audit objection. On 9th February, 2009, a
letter/report was sent to the Assistant
Director,
Local
Funds
Accounts
and
Statutory Audit Section of the University by
the Head of Department of the University
indicating that pay scale of Rs.1200-2040/-
was rightly and legally allowed to the Lab
Assistants working in the University and
there was no illegality or arbitrariness in
granting the said pay scale to the Lab
Assistant as figured in the audit objection. It
was requested that on the basis of report, the
aforesaid audit objection for the financial
year 1990-91 should be dropped/removed.

19. Assistant Director, Local Funds
Accounts and Statutory Audit Section of the
University vide letter dated 12.02.2019 sent
the said letter of the Head of Department
dated 09.02.2009 on the subject to the
Finance Controller of the University wherein
it was recommended that audit objection for
the financial year 1990-91 related to the
alleged illegal pay scale of Rs.1200-2040/- to
the Lab Assistants be dropped.

20.

Learned
Senior
Advocate,
therefore, has submitted that the very basis
of the impugned order dated 28th April,
1998 is non-existent ground inasmuch as
the audit objection for the year 1990-91 had
been removed and the petitioners ought to
have been granted the pay scale.

21. It has been further submitted by
the learned Senior Advocate that the Lab
Assistants working in other Departments of
the State Government including in the
affiliated colleges and universities, on the
basis of recommendation of the Samata
Smiti, have been drawing salary of the pay
scale of Rs.1200-2040/- (revised Rs.40006000/-) with effect from 1st January, 1986.
He has also drawn attention of the Court to
the
Government
Order
dated
26th
September,
2013
whereby
the
State
Government had taken a decision regarding
fixation
of
pay
on
the
basis
of
recommendation dated 7th November,
1998 of the Vetan Samiti in respect of
Educational
and
Technical
Education
institutions.

22. It has been further submitted that
the recommendations of the pay committee
would show it had been recommended that
the lab assistants posted in the affiliated
colleges with the University should be
given the pay scale of Lab Assistants at par
the
Lab
Assistants
posted
in
the
Government Department and Institutions.

23. It has been submitted by the
learned Senior Advocate that in view of the
aforesaid, the petitioners are also entitled
the salary for the pay scale of Rs.12002040/- (revised as Rs.4000-6000/-) in the
sixth pay scale and, thereafter in the pay
scale of Rs.5200-20200/- along with grade
pay of Rs.2400/-.

24. On the other hand, Mr Sanjay
Mishra, learned Additional Chief Standing
Counsel appearing for the respondent No.1
942 INDIAN LAW REPORTS ALLAHABAD SERIES
and 2 has submitted that the petitioners
were initially appointed as Lab Assistants
in the pay scale of Rs.200-320/-, which was
revised from Rs.354-550/- with effect from
1st July, 1979 and it was again revised to
Rs.950-1500/- with effect from 1st January,
1986.
The
petitioners
were
illegally
sanctioned the pay scale of Rs.1200-2040/-
by the University in anticipation of
approval by the State Government. Mr.
Sanjay Mishra, learned A.C.S.C. has also
submitted that the pay scale of Lab
Assistants in Chandra Shekhar Azad
Agriculture
and Technical
University,
Kanpur was Rs.775-1025/- and Rs.12002040/- on or before 1st January, 1986
whereas
in
Gobind
Ballabh
Pant
Agriculture
and Technical
University,
Pantnagar, pay scale of Lab Assistant was
Rs.430-685/- and Rs.354-550/- prior to 1st
January, 1986 and after re-fixation with
effect from 1st January, 1986, two pay
scales became Rs.1200-2040/- and Rs.9501500/-.

25. It has been further submitted by
Mr.Sanjay Mishra, learned A.C.S.C. that
there was only one pay scale of Lab
Assistant in the University which was
initially Rs.200-320/-, which got revised to
Rs.354-550/- with effect from 1st July,
1979 and, then it was further revised to
Rs.950-1500/- with effect from 1st January,
1986. He, therefore, has submitted that the
petitioners are not entitled for the pay scale
of Rs.1200-2040/-.

26. Mr Sanjay Mishra, learned
Additional Chief Standing Counsel has also
submitted that the petitioners have not
brought any material on record to show that
nature of work and duties, volume of work,
degree
of
responsibility,
quality
and
quantity of work, area of work etc., of Lab
Assistants in the University and Chandra
Shekhar Azad Agriculture and Technical
University, Kanpur, Gobind Ballabh Pant
Agriculture
and Technical
University,
Pantnagar, Uttarakhand are same. It has
been further submitted that the petitioners
were appointed in the pay scale of Rs.200320/-, which was revised as mentioned
above to Rs.950-1500/- with effect from 1st
January, 1986 and, therefore, they were not
entitled for pay scale of Rs.1200-2040/- as
claimed by them. The State Government,
therefore, directed the University to cancel
the order of granting pay scale of Rs.12002040/- to them. He, therefore, submits that
there is no illegality in the impugned order
passed by the State Government and
consequential
order
passed
by
the
University.

27. Mr Uttam Kumar, learned counsel
appearing for the University has submitted
that the Board of Management in its
meeting dated 12th September, 1991
resolved to sanction of new pay scale of
Rs.1200-2040/- for the post of Lab
Assistant with effect from 1st January,
1986 as the Lab Assistants posted in the
University went on strike in the year 1991
making demand of revised pay scale of
Rs.1200-2040/-. Said pay scale was granted
to the Lab Assistants in anticipation of the
approval from the State Government. He
has further submitted that the University
received grant/budget from the State
Government and, since revised pay scale of
Rs.1200-2040/- was not approved by the
State Government, the petitioners did not
become entitled for the said pay scale
inasmuch as the same was granted to them
by
the
University
provisionally
in
anticipation of the approval from the State
Government.

28. I have considered the submissions
advanced on behalf of the learned counsel
3 All. Gram Panchayat Kabirpur Distt. Chandauli Vs. Addl. Commissioner (Administration)
 Varanasi Div. & Ors.
943
for the petitioners as well as learned
Additional Chief Standing Counsel and Mr
Uttam Kumar Verma, learned counsel
appearing for the University.

29. As per the interim order, the
petitioners have been drawing revised pay
scale of Rs.1200-2040/- after it was
sanctioned to them in the year 1991. Thus,
for 31 years, the petitioners have been paid
revised pay scale. The University itself has
granted revised pay scale to some of the
Lab Assistants as mentioned above. Even
pay committee has recommended the
identical pay scale to the Lab Assistants in
Government
Departments
and
other
institutions which was Rs.1200-2040/-
(Revised
Rs.4000-6000/-).
The
audit
objection,
which
was
the
basis
for
withdrawing the pay scale of Rs.12002040, was removed and the very ground for
issuing the Government Order vide order
dated 28th April, 1998 got vanished after
removal of the audit objection. It is not in
dispute that the Lab Assistants working in
the other Government Departments were in
the pay scale of Rs.1200-2040/- with effect
from 1st January, 1986 and, thereafter
Rs.4000-6000/- in the sixth pay scale. The
petitioners are duly appointed having
requisite qualifications for the post of Lab
Assistant and they have been working for
fairly long time and some of them have
retired and others are on the verge of
retirement. At this stage, it would be unjust
and improper to decline the pay scale of
Rs.1200-2040/- (revised from time to time).

30. In view of the aforesaid
discussion, the present writ petition is
allowed. The petitioners in this writ petition
are entitled to pay scale of Rs.1200-2040/-
with effect from the date of interim order
i.e. 22nd June, 1998 (revised from time to
time).
----------
(2022)03ILR A943
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.12.2021

BEFORE

THE HON'BLE DINESH PATHAK, J.

Writ C No. 8810 of 2019

Gram Panchyat Kabirpur Distt. Chandauli
 ...Petitioner
Versus
Addl.
Commissioner
(Administration)
Varanasi Div. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Manoj Kumar Yadav, Si Bhupendra
Kumar Tripathi

Counsel for the Respondents:
C.S.C., Sri Abhishek Singh, Sri Bhupendra
Kuar Tripathi, Sri Sanjeev Singh (Sr. Adv.),
Sri Dinesh Kumar Singh

A. Land Law - U.P.Z.A. & L.R. Act, 1950.--
Section 229 B - Suit for declaration of
Bhumidhari Rights- decreed ex-parte- four
restoration applications filed at a very belated
stage at different stages under Order IX Rule 13
of C.P.C.

B. Civil Law - Code of Civil Procedure,
1908 - Order IX Rule 13 of C.P.C.-
Defendant against whom decree has been
passed ex-parte is entitled to get the same setaside if he could satisfy the court that the
summons were not duly served upon him or
that he was prevented by sufficient cause from
appearing when the suit was called upon for
hearing.

C. Civil Law - Code of Civil Procedure,
1908 - Second Proviso to Rule 13 of Order
IX of C.P.C.- Right to get an ex-parte decree
ceased to be available in a case where the
defendant knew, or but for his willful conduct
would have known of the date of hearing in