# State Of U.P. & Ors v. Baij Nath Sharma & Ors

- **Citation:** (2016) 5 ILRA 1347
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-30
- **Bench:** Dr. Devendra Kumar Arora
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-baij-nath-sharma-ors-43744
- **Pages:** 4

## Headnote

1348 INDIAN LAW REPORTS ALLAHABAD SERIES
Service Law - Review - Assured Career Progression (ACP) - Counting of service rendered in
work-charged establishment - Not permissible - Review allowed.

Assured Career Progression (ACP) - Where the writ petition had been allowed by relying upon the
judgment in Bhuneshwar Rai v. State of U.P., granting the benefit of Assured Career Progression (ACP) by
counting service rendered in a work-charged establishment, but subsequently a Full Bench of this Court in
Babu @ Babu Ram v. State of U.P. categorically held that service rendered in a work-charged establishment
cannot be counted as qualifying service for Assured Career Progression (ACP), the earlier judgment suffers
from an error apparent on the face of the record..

Counting of service rendered in work-charged establishment - Held that the benefit of Assured Career
Progression (ACP) under Government Orders dated 4.5.2010 and 22.12.2011 is admissible only on
completion of the requisite period of satisfactory substantive service in regular establishment, and there is no
provision for counting work-charged service.

Recalled- The writ court judgment allowing ACP by counting work-charged service being contrary to the law
laid down by the Full Bench, is liable to be recalled.

Review petition allowed; judgment dated 19.2.2015 recalled; writ petition dismissed.

Case listed

Bhuneshwar Rai (supra)
State of U.P.& 6 others Vs. Mohan Prasad (Runner) and 13 others (Special Appeal Defective No.
634 of 2015)
Punjab State Electricity Board & Others Vs. Naratha Singh : (2010) 4 SCC 417;
Jai Prakash Vs. State of U.P. & Others : 2014 (2) ADJ 169
Babu @ Babu Ram Vs. State of U.P. & 3 others (writ-A No. 60352 of 2015)
Navrang Lal Srivastava Vs. State of U.P. & others (special appeal No. 1306 of 2013, decided on
16th July, 2015)
State of U.P. And others Vs. Ram Nagina Lal Srivastva : 2015 (8) ADJ 405 (DB)
State of U.P. And others Vs. Panchu (Special Appeal Defective No. 842 of 2013, decided on
2.12.2013)

## Text

5 All. State Of U.P. & Ors. Vs Baij Nath Sharma & Ors.

1347
their very nature being civil shall not assume the character of a sovereign/public function so long as
the tests of three dimensional theory are satisfied which postulate (a) financial control; (b)
pervasive administrative control; and (c) the public purpose.

16. We are not persuaded to hold the issuance of letter dated 9 13.7.2015 circulating the
New Model Service Rules, 2015 to be in the capacity of a public authority, therefore, it remains to
be a correspondence in relation to the private affairs of the Society which cannot be tested on the
anvil of Article 14 of the Constitution of India for the reason that a person whose contract of
service is itself time bound cannot claim anything beyond what stands settled in the terms of
contract and violation of the terms of contract would be amenable only to civil remedy, but a writ
petition would not lie. Accordingly, challenge to Note-2 appended to the New Model Service
Rules, 2015 under Article 226 of the Constitution of India fails.

17. Now coming to the maintainability of this writ petition in view of the decisions cited
before us, it is to be noted that a Division Bench of this Court of which one of us (Hon'ble A.P.
Sahi, J.) was a member, after elaborate consideration of the matter has held that a writ petition by
an employee of AWES would not be maintainable. The decision has been rendered in view of the
decisions of the apex court in the case of Zee Telefilms Ltd . & Anr . vs. Union of India, AIR 2005
SC 2677 and Pradeep Kumar Biswas vs . Indian Institute of Chemical Biology , (2002 ) 5 SCC
111 . The Division Bench judgement being rendered by this Court has a binding effect on us,
therefore, it is difficult for us to take a different view of the matter, particularly in a situation where
nothing under the three dimensional theory as pointed out has altered the position in the present
case. In the result, the preliminary objections are sustained and the writ petition filed under Article
226 of the Constitution of India is dismissed at the admission stage. No orders as to cost.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.05.2016

BEFORE

THE HON'BLE DR. DEVENDRA KUMAR ARORA, J.

Review Petition Defective No.- 288 Of 2015

State Of U.P. & Ors. ...Petitioners
Versus
Baij Nath Sharma & Ors. ...Respondents

Counsel for the Petitioners:
C.S.C.

Counsel for the Respondents:
Rakesh Kr. Singh
1348 INDIAN LAW REPORTS ALLAHABAD SERIES
Service Law - Review - Assured Career Progression (ACP) - Counting of service rendered in
work-charged establishment - Not permissible - Review allowed.

Assured Career Progression (ACP) - Where the writ petition had been allowed by relying upon the
judgment in Bhuneshwar Rai v. State of U.P., granting the benefit of Assured Career Progression (ACP) by
counting service rendered in a work-charged establishment, but subsequently a Full Bench of this Court in
Babu @ Babu Ram v. State of U.P. categorically held that service rendered in a work-charged establishment
cannot be counted as qualifying service for Assured Career Progression (ACP), the earlier judgment suffers
from an error apparent on the face of the record..

Counting of service rendered in work-charged establishment - Held that the benefit of Assured Career
Progression (ACP) under Government Orders dated 4.5.2010 and 22.12.2011 is admissible only on
completion of the requisite period of satisfactory substantive service in regular establishment, and there is no
provision for counting work-charged service.

Recalled- The writ court judgment allowing ACP by counting work-charged service being contrary to the law
laid down by the Full Bench, is liable to be recalled.

Review petition allowed; judgment dated 19.2.2015 recalled; writ petition dismissed.

Case listed

Bhuneshwar Rai (supra)
State of U.P.& 6 others Vs. Mohan Prasad (Runner) and 13 others (Special Appeal Defective No.
634 of 2015)
Punjab State Electricity Board & Others Vs. Naratha Singh : (2010) 4 SCC 417;
Jai Prakash Vs. State of U.P. & Others : 2014 (2) ADJ 169
Babu @ Babu Ram Vs. State of U.P. & 3 others (writ-A No. 60352 of 2015)
Navrang Lal Srivastava Vs. State of U.P. & others (special appeal No. 1306 of 2013, decided on
16th July, 2015)
State of U.P. And others Vs. Ram Nagina Lal Srivastva : 2015 (8) ADJ 405 (DB)
State of U.P. And others Vs. Panchu (Special Appeal Defective No. 842 of 2013, decided on
2.12.2013)

(Delivered by Hon'ble Dr. Devendra Kumar Arora, J.)

1. Heard learned Standing Counsel for the review petitioners and Mr. Rakesh Kumar
Singh, learned Counsel for the respondents.

2. State authorities have preferred the aforecaptioned review petition, seeking review of the
judgment and order dated 19.2.2015 passed in writ petition No. 286 (SS) of 2015 : Baij Nath
Sharma and others Vs. State of U.P. and others., whereby the writ Court, on placing reliance upon
the judgment rendered in Special Appeal No. 445 of 2011 : Bhuneshwar Rai Vs. State of U.P. and
others, decided on 18.9.2014, allowed the writ petition in terms of judgment and order dated
18.9.2014 passed in Bhuneshwar Rai (supra) and quashed the orders impugned in the writ petition
i.e. orders dated 3.11.2014 and 3.9.2014.
5 All. State Of U.P. & Ors. Vs Baij Nath Sharma & Ors.

1349
3. Learned Standing Counsel appearing on behalf of the review petitioners submits that the Assured
Career Progression (hereinafter referred to as the "ACP") has been enforced by the State Government vide
Government Order dated 4.5.2010, whereby, on completion of 10 years, 18 years and 26 years satisfactory
services, the benefit of 1st ACP, 2nd ACP and 3rd ACP are admissible. Subsequently, vide Government
Order dated 22.12.2011, the benefit of 2nd ACP has been made admissible on completion of 16 years
services in place of 18 years services. His submission is that after regularization, when the ACP was enforced
in the year 2010, the writ petitioners/respondents were claiming the benefit of ACP by counting their
services, which they rendered in the Work-Charge Establishment but as the benefit of ACP is admissible on
the basis of satisfactory substantive services and since the writ petitioners/respondents were the employees
working in the Work-Charge Establishment, therefore, the benefit of ACP cannot be extended to them.
Perhaps these facts could not be brought to notice of this Court while passing the order under review.

4. Elaborating his submission, learned Standing Counsel submits that judgment rendered in Special
Appeal No. 445 of 2011 : Bhuneshwar Rai Vs. State of U.P. and others, as relied by this Court while passing
the order under review, was not applicable in respect of the writ petitioners, for the reason that after
regularization, Shri Bhuwaneshwar Rai completed required satisfactory services under the regular
establishment, while in the matter in hand, writ petitioners/respondents' case is quite different as they have
not completed the required satisfactory services provided in the relevant Government Order dated 4.5.2010
read with Government Order dated 22.12.2011, wherein there is no provision for counting the services
rendered in the work-charged establishment for grant of benefit of ACP.

5. Learned Standing Counsel further submits that a Division Bench of this Court in State of U.P.& 6
others Vs. Mohan Prasad (Runner) and 13 others (Special Appeal Defective No. 634 of 2015), decided on
14.9.2015, while relying upon the judgment of the Apex Court in Punjab State Electricity Board & Others
Vs. Naratha Singh : (2010) 4 SCC 417; and this Court's judgment in Jai Prakash Vs. State of U.P. &
Others : 2014 (2) ADJ 169 including the case of Bhuneshwar Rai (supra), has observed that it is not
possible to sustain the directions issued by the learned Judge for counting the period of service rendered by
the petitioner in a work charged establishment for the purpose of determining the grant of ACP. Furthermore,
recently, a Full Bench of this Court in Babu @ Babu Ram Vs. State of U.P. & 3 others (writ-A No. 60352 of
2015), decided on 18.2.2016, has propounded that the period of service spent in a work-charged
establishment is not liable to be counted for the purposes of computing qualifying service and the law in this
regard stands correctly declared and elucidated in Jai Prakash (supra), Navrang Lal Srivastava Vs. State of
U.P. & others (special appeal No. 1306 of 2013, decided on 16th July, 2015) and State of U.P. And others
Vs. Ram Nagina Lal Srivastva : 2015 (8) ADJ 405 (DB). The Full Bench has further held that the decision
in State of U.P. And others Vs. Panchu (Special Appeal Defective No. 842 of 2013, decided on 2.12.2013)
and other judgments of this Court which have followed the line of reasoning adopted therein shall
accordingly stand overruled. In these backgrounds, submission is that order under review is liable to be set-
aside and the writ petition is liable to be dismissed.

6. Per contra, Mr. Rakesh Kumar Singh, learned Counsel for the writ petitioners/respondents has
submitted that review petitioners themselves have given benefit of ACP to so many persons, therefore, the
writ petitioners cannot be discriminated. He submits that the issue before the Full Bench of this Court in
Babu @ Babu Ram (supra) was with respect to the promotion and not with respect to the grant of ACP.
1350 INDIAN LAW REPORTS ALLAHABAD SERIES
7. I have heard learned Standing Counsel appearing on behalf of review petitioners and learned
Counsel for the writ petitioners/respondents.

8. A perusal of the order under review reveals that writ petition No. 286 of 2015 (S/S) was allowed
in terms of Bhuneshwar Rai (supra) on the submission of the learned Counsel for the writ petitioners that
controversy involved in the writ petition has already been settled by a Division Bench of this Court in
Bhuneshwar Rai (supra) and the learned Standing Counsel does not dispute the assertion of the Counsel for
the petitioner.

9. It is not in dispute that the issue involved in the writ petition was with respect to counting of
services rendered in the work charged establishment for the purpose of grant of ACP. This issue has already
been answered by the Full Bench of this Court in Babu @ Babu Ram (supra), wherein the Full Bench has
held as under :

"We therefore hold that the period of service spent in a work charged establishment is not
liable to be countenanced for the purposes of computing qualifying service. The law in this regard stands
correctly declared and elucidated in Jai Prakash, Navrang Lal Srivastava and Ram Nagina. The decision in
Panchu and the other judgments of this Court which have followed the line of reasoning adopted therein shall
accordingly stand overruled."

10. From perusal of the aforesaid judgment of the Full Bench of this Court, it is crystal clear that the
period of service spent in a work charged establishment is not liable to be countenanced for the purposes of
computing qualifying service. Therefore, the plea of the writ petitioners/ respondents is not sustainable and,
accordingly, the order under review is liable to be recalled.

11. For the reasons aforesaid, the review petition is allowed. The judgment and order dated
19.2.2015 is recalled. The writ petition lacks merit and is, accordingly, dismissed.

12. Costs easy.
---------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.05.2016

BEFORE

THE HON'BLE MANOJ MISRA, J.

S.C.C. Revision No.- 111 Of 2016

Ashish
 ...Revisionist
Versus
Saleem ...Opposite Party