# State of U.P. & Ors v. Dr. Raj Kamal Singh

- **Citation:** (2020) 6 ILRA 696
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-04-21
- **Case number:** Special Appeal No. 253 of 2020
- **Bench:** Biswanath Somadder, Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-dr-raj-kamal-singh-45788
- **Pages:** 7

## Headnote

A. Civil Law - UP State Medical Colleges
Teachers Services Rules, 1999 - Rule 5 -
Benefit of Pay Protection - Admittedly the writ
petitioner/respondent was appointed pursuant
to an appointment Order issued subsequent to
the Government Order dated 24.09.2015 and
08.07.2016 - Writ petitioner would be
governed in terms of the policy guidelines
under the said government orders - His claim
for entitlement for pay protection would be as
per the terms thereof - He would not be
entitled to pay protection as per terms of the
policy of the State Government under the G.O.
dated 24.09.2015 - Held the impugned
judgment has proceeded on a wrong factual
premise. (Para 17, 18 and 20)
Special Appeal allowed; Writ Petition
dismissed (E-1)
Cases relied on :-

## Text

696 INDIAN LAW REPORTS ALLAHABAD SERIES
about
B.Ed.
Degree,
2002
from
University of Calcutta. He has stated that
he has neither applied for B.Ed. Course
2005
from
Dr.
B.R.
Ambedkar
University,
Agra
nor
has
obtained
employment on the basis of B.Ed. Degree
of Dr. B.R. Ambedkar University. This
aspect of the matter has not been
considered in the impugned order dated
11.12.2019. Therefore, the impugned
order dated 11.12.2019 is quashed. The
respondent No.4 is directed to pass a
reasoned order afresh in accordance with
law within six weeks. While passing the
order, the respondent No.4 shall also
examine records relating to the petitioner
for obtaining employment as Assistant
Teacher and other relevant material
before him, without being influenced by
any of the observations made in Para-67
above.

70. With the aforesaid detail
observations/ directions all the writ
petitions are disposed off.
----------
(2020)06ILR A696
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.04.2020

BEFORE
THE HON'BLE BISWANATH SOMADDER , J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Special Appeal No. 253 of 2020

State of U.P. & Ors. ...Appellants
Versus
Dr. Raj Kamal Singh ...Respondent

Counsel for the Appellants:
Sri Manish Goyal (A.A.G.), Sri Ashok
Kumar Goyal (Addl. C.S.C.)

Counsel for the Respondents:
Sri H.P. Shahi, Sri Virendra Singh, Sri A.B.
Maurya.

A. Civil Law - UP State Medical Colleges
Teachers Services Rules, 1999 - Rule 5 -
Benefit of Pay Protection - Admittedly the writ
petitioner/respondent was appointed pursuant
to an appointment Order issued subsequent to
the Government Order dated 24.09.2015 and
08.07.2016 - Writ petitioner would be
governed in terms of the policy guidelines
under the said government orders - His claim
for entitlement for pay protection would be as
per the terms thereof - He would not be
entitled to pay protection as per terms of the
policy of the State Government under the G.O.
dated 24.09.2015 - Held the impugned
judgment has proceeded on a wrong factual
premise. (Para 17, 18 and 20)
Special Appeal allowed; Writ Petition
dismissed (E-1)
Cases relied on :-
1. Jagdish Parwani Vs U.O.I. & ors. (2018) 15
SCC 591
(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. The present intra court appeal
seeks to challenge the judgment and order
dated 18.07.2019 passed by a learned
Single Judge in Writ-A No. 10674 of
2019 (Dr. Raj Kamal Singh Vs. State of
U.P. and 2 others), whereby the writ
petition has been allowed and the order
dated 05.04.2019 passed by the State
Government which was impugned therein
has been quashed.

2. The authorities of the State
Government who were the respondents in
the writ petition are the appellants before
us.

3. Learned Additional Advocate
General appearing for the appellants has
submitted that the learned Single Judge
6 All. State of U.P. & Ors. Vs. Dr. Raj Kamal Singh 697
has
erroneously
proceeded
on
a
presumption that the writ petitioner had
been appointed by the State Government
on 26.08.2015 i.e. prior to 24.09.2015
when the relevant government order was
issued clarifying that the benefit of an
earlier
government
order
dated
12.06.1998 with regard to pay protection
would not be available to a government
servant appointed by open recruitment.

4. It is submitted that the writ
petitioner in fact submitted his joining
pursuant to a subsequent appointment
order dated 20.09.2016, which is after
issuance of the government order dated
24.09.2015, and in view thereof the
judgment of the learned Single Judge
having been rendered on an incorrect
factual
premise,
cannot
be
legally
sustained.

5. Learned counsel appearing for the
respondent-writ petitioner has tried to
support the judgment of the learned
Single Judge by submitting that though
the petitioner had joined the post of
Lecturer at the State Medical College,
Jhansi, pursuant to the appointment order
dated 20.09.2016, he had initially been
granted appointment in terms of an
appointment
order
dated
26.08.2015
which was prior in time to the issuance of
the government order dated 24.09.2015
and as such the benefit of pay protection
could not have been denied to him.

6. In order to appreciate the rival
contentions, the relevant facts, as are
reflected from the records before us, are
required to be noticed.

7. The subject matter of the
controversy
pertains
to
appointment
against a post of Lecturer in a State
Medical College in Uttar Pradesh, which
is governed by the Uttar Pradesh State
Medical
Colleges
Teachers
Services
Rules, 19991, as amended from time to
time. Under the aforesaid Rules, the
appointing authority is the Governor of
the State.

8. As per Rule 5 of the aforesaid
Service Rules, the posts of Lecturers in
State Medical Colleges are to be filled up
by
direct
recruitment
on
the
recommendation of the Uttar Pradesh
Public
Service
Commission2.
The
vacancies existing in the teaching cadre in
the State Medical Colleges were notified
to the Commission and the same were
advertised in terms of an advertisement
dated
24.08.2013
inviting
online
applications for filling up the vacancies
by direct recruitment. Pursuant to the said
advertisement, the respondent-petitioner
submitted
his
application
and
was
selected by the Commission on the basis
of an interview. Consequent thereto, the
State Government issued an appointment
order dated 26.08.2015 whereunder the
petitioner was granted appointment and
posting against the post of Lecturer
(Tuberculosis
and
Respiratory
Medicine/Pulmonary Medicine) at the
Medical
College,
Azamgarh.
The
appointment order provided for a specific
condition whereunder the petitioner was
required to join the post within a period of
one month, failing which the appointment
order was to be cancelled and his
candidature would cease. It transpires that
the petitioner did not join within the
stipulated time period, and another
appointment order dated 20.09.2016 was
issued
whereunder
he
was
appointed/posted at the Medical College,
Jhansi, on the same terms and conditions
as
under
the
earlier
order
dated
698 INDIAN LAW REPORTS ALLAHABAD SERIES
26.08.2015. Accepting the subsequent
appointment order dated 20.09.2016, the
petitioner joined the post of Lecturer at
the
Medical
College,
Jhansi
on
07.10.2016, and raised a claim for pay
protection which came to be turned down
by the State Government by means of an
order dated 05.04.2019 by assigning the
reason that since the petitioner had been
appointed after 24.09.2015, his case
would not be covered as per terms of
Government Orders dated 24.09.2015,
08.07.2016
and
12.06.1998,
and
accordingly he would not be entitled for
the benefit of pay protection. Challenging
the aforesaid order dated 05.04.2019, the
writ petition was filed which has been
allowed in terms of the judgment under
appeal.

9. The policy of the State
Government with regard to grant of pay
protection to persons working in Public
Sector
Undertakings/Corporations,
Universities prior to their appointment in
services under the government was
governed in terms of a government order
dated 12.06.1998 which provided that the
candidates working in Public Sector
Undertakings/Corporations
and
Universities, who were appointed upon
selection made by the Public Service
Commission
or
a
duly
constituted
selection committee, would be granted the
benefit of pay protection. Subsequently, a
government order dated 24.09.2015 was
issued clarifying that the benefit of the
earlier
government
order
dated
12.06.1998 would not be available to a
government
servant
who
had
been
appointed consequent to his selection in a
recruitment based on open competition.
The government order dated 24.09.2015
was further amended with the issuance of
another
government
order
dated
08.07.2016 containing a stipulation that
the claims made with regard to pay
protection in cases where appointments
had been made subsequent to 24.09.2015
would be governed as per the provisions
under
the
government
order
dated
24.09.2015. For ease of reference the two
government orders dated 24.09.2015 and
08.07.2016 are being extracted herein
below :-

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6 All. State of U.P. & Ors. Vs. Dr. Raj Kamal Singh 699
'kklukns'k ds laca/k esa vius dk;kZy; Kkiu la[;k
& 12@1@96@& Estt.(Pay-1) fnukad 10&07&98
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ykHk ns; ugha gSA jkT; ljdkj }kjk Hkh vius
'kklukns'k fnukad 12 twu] 1998 esa ;g Li"V
izkfo/kku fd;k x;k gS fd jktdh; lsok esa fu;qfDRk
ij lkoZtfud midze vkfn esa izkIr osru laj{k.k dh
lqfo/kk blfy;s izkfo/kkfur dh tk jgh gS rkfd muesa
dk;Zjr cqfn~/kthoh lsodksa dks jktdh; lsok esa
vkdf"kZr fd;k tk ldsA [kqyh izfr;ksfxrk ls mDr
mns~''; dh iwfrZ fdlh Hkh fLFkfr esa ugha gksrh gS]
vfirq yksd lsok vk;ksx vFkok l{ke Lrj ds p;u
esa fof'k"V ;ksX;rk /kkjdks dk p;u fd;s tkus ij gh
,slh fLFkfr curh gSA vr,o lE;d fopkjksijkUr
Hkkjr ljdkj dh O;oLFkk ,oa jkT; ljdkj ds
'kklukns'k ds lnaHkZ esa lkoZtfud midze@fuxe]
fo'ofo|ky; esa dk;Zjr~ dfeZ;ksa dh yksd lsok
vk;ksx@l{ke Lrj ds p;u lfefr }kjk p;uksijkUr
jkT; ljdkj dh lsok esa fu;qfDr ij iznku fd, x,
osru laj{k.k ds lanHkZ esa iwoZ esa tkjh 'kklukns'kksa ds
dze esa ;g Li"V fd;k tkrk gS fd 'kklukns'k
fnukad 12&06&1998 }kjk iznRr osru laj{k.k dh
lqfo/kk dk ykHk ,slh fLFkfr esa ns; ugha gS tcfd
lacaf/kr ljdkjh lsod dk p;u [kqyh izfr;ksfxrk ds
vk/kkj ij gqvk gksA cfYd mDr lqfo/kk dk ykHk
'kklu }kjk rHkh vuqeU; djk;k tkuk gS] tc
lkoZtfud midzeksa@fuxeksa] fo'ofo|ky; esa dk;Zjr
dfeZ;ksa dh fo'ks"kKrk dk ykHk ysus ds fy;s fdlh
fof'k"V in ij mudk p;u yksd lsok vk;ksx }kjk
lk{kkRdkj ds ek/;e ls fd;k tk;s ,oa yksd lsok
vk;ksx }kjk 'kklu dks izsf"kr vius laLrqfr i= esa
;g Li"V :i ls bafxr fd;k x;k gks fd lacaf/kr
dehZ dk osru mijksDr 'kklukns'k fnukad
12&06&1998 ds vUrxZr lajf{kr fd;k tkuk gSA
blds vfrfjDr bl izdkj fu;qDr ljdkjh lsodksa
dks osru laj{k.k dk ykHk rHkh ns; gS tc os vius
iwoZ in ij LFkk;h gksaA bl izdkj ds izdj.kksa esa osru
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laj{k.k dk ykHk foRr foHkkx dh lgefr ls iwoZ esa
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700 INDIAN LAW REPORTS ALLAHABAD SERIES
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dh vfUre iafDr esa ;g izko/kku fd ^^ftu izdj.kksa esa
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10. In the facts of the case, it is not
disputed that the petitioner did not join
pursuant to the initial appointment order
dated 26.8.2015 and it was only pursuant
to a subsequent appointment order dated
20.09.2016
issued
by
the
State
Government that the petitioner joined the
post of Lecturer at the State Medical
College, Jhansi.

11. The writ petitioner, having
admittedly joined the post of Lecturer
(T.B./Chest) at the Medical College,
Jhansi, on 07.10.2016 pursuant to the
appointment order dated 20.09.2016,
therefore cannot claim the benefit of pay
protection on the basis of the previous
appointment
order
dated
26.08.2015
offering appointment to the writ petitioner
at Azamgarh.

12. The claim sought to be raised by
the respondent-petitioner based on the
earlier
appointment
order
dated
26.08.2015 cannot be accepted for the
simple
reason
that
the
offer
of
appointment
in
terms
of
the
said
appointment order was never acted upon.
Subsequently,
another
order
of
appointment dated 20.09.2016 was issued
and it was pursuant to the same that the
petitioner joined the post of Lecturer at
the State Medical College, Jhansi on
07.10.2016. The appointment of the
petitioner thus cannot be treated as being
prior to 24.09.2015.

13. The appointment of the
petitioner against the post of Lecturer at
the State Medical College, Jhansi, which
has been ultimately accepted by him is
therefore pursuant to the appointment
order dated 20.09.2016 issued by the
State Government which is clearly
subsequent to the issuance of the
Government Order dated 24.09.2015
clarifying
the
policy
of
the
State
Government
with
regard
to
pay
protection.

14. The grant of pay protection, in a
particular case, would depend on the
prevalent policy, which may be based
upon consideration of a variety of factors
as also the recommendations made by
expert bodies with little scope of
interference in exercise of powers of
judicial review. The entitlement to pay
protection, if any, would thus flow strictly
from the prevalent policy directives and
any claim made in regard to the same
would have to be tested on the basis of
the said policy guidelines.

15. To support the aforesaid
proposition, reference may be had to the
decision in Jagdish Parwani Vs. Union of
India and others3, in which a claim for
pay protection sought on the basis of a
notification issued by the Department of
Personnel and Training, Government of
6 All. State of U.P. & Ors. Vs. Dr. Raj Kamal Singh 701
India, on 28.02.1992, granting pay
protection to employees selected by direct
recruitment on or after 01.02.1992, was
turned down and the appellant was held
not entitled to benefit of pay protection
since he had been appointed to the post
prior
to
01.02.1992.
The
relevant
observations made in the judgment are as
follows :-

"15. A bare perusal of the
memorandum would make it crystal clear
that
the
employees
of
the
State
Government undertakings selected for
posts in the Central Government on direct
recruitment basis on and after 1-2-1992
were also extended the benefit of pay
protection, as was provided in the case of
the employees of the Central Government
public undertakings as per Notification
dated 7-8-1989.

16.

In
the
aforesaid
notification, it was clearly stipulated that
the said benefit of pay protection is
effective only from the first of the month
in which the OM is issued i.e. from 1-21992, which means that the said OM was
given prospective effect only. Therefore,
the said OM could even be said to be a
clarification on the issue which is sought
to be raised in the present case. It was
clearly pointed out in the said notification
that employees like the appellant would
be entitled to get such pay protection, as
employees of the State Government
undertakings on their appointment in the
Central Government service only from
the effective date of 1-2-1992.

17. If the appellant would have
been appointed for a post in the Central
Government on direct recruitment basis
after 1-2-1992 such benefit of pay
protection
could
have
been
made
available to him. But since the appellant
was selected and appointed to a post in
the Central Government on 23-2-1990
after working as an employee of the State
Government undertaking viz. UPSEB, the
Notification dated 7-8-1989 was not
applicable to him and, therefore, he could
not have legally claimed for any pay
protection.

x x x x x

19. The position with regard to
the entitlement or otherwise of the
appellant for getting pay protection was
made clear by issuing the Notification
dated
28-2-1992
clearly
stipulating
therein that an employee of the State
Government undertaking selected for post
in the Central Government on direct
recruitment basis would be entitled to pay
protection upon appointment in the
Central Government only effective from
1-2-1992. The appellant having joined the
MES, Ministry of Defence prior to the
aforesaid date was not entitled to the
benefit of the aforesaid notification which
was issued much after his joining date
and, therefore, the benefit of the aforesaid
notification is not available to the
appellant."

16. On the question of entitlement to
pay protection, the decision rendered in
the aforementioned judgment of Jagdish
Parwani, has held that the issue with
regard to pay protection arises after an
employee joins his new post, where he
gets his new pay scale, and his
entitlement to pay protection would be on
the basis of applicable rules regarding pay
protection at that stage. It was stated thus
:-

"21.
...So
far
as
getting
pay
protection is concerned, the said issue
arises as soon as an employee joins his
new post, where he gets his new pay scale
and if he is entitled to any pay protection
702 INDIAN LAW REPORTS ALLAHABAD SERIES
that is the stage and date when it is
granted
by
whatever
notifications,
memorandums which are available and
applicable at that stage laying down such
rules regarding pay protection..."

17. In the instant case also, the writ
petitioner,
having
accepted
the
appointment pursuant to an appointment
order
dated
20.09.2016,
issued
subsequent to the government orders
dated 24.09.2015 and 08.07.2016, would
be governed in terms of the policy
guidelines under the said government
orders and his claim for entitlement for
pay protection would be as per the terms
thereof.

18. The appointment of the
petitioner having been made pursuant to
selection based on direct recruitment in an
open competition on the recommendation
made by the Commission consequent to
an advertisement, he would not be
entitled to pay protection as per terms of
the policy of the State Government under
the government order dated 24.09.2015.
The aforesaid position stands further
clarified in terms of the subsequent
government
order
dated
08.07.2016
whereunder it is provided that the matters
relating to pay protection in respect of
appointments made after 24.09.2015
would be governed as per the terms of the
Government Order of the said date.

19. Counsel appearing for the
respondent has not been able to dispute
the aforesaid factual position with regard
to the writ petitioner having not accepted
the earlier appointment order dated
26.08.2015 in terms of which he had been
appointed as Lecturer at the Medical
College, Azamgarh, and that it was only
pursuant to the subsequent appointment
order dated 20.09.2016 that the petitioner
accepted the offer of appointment and
joined the post of Lecturer at the Medical
College, Jhansi, on 07.10.2016.

20. The above being the undisputed
factual position, we have no hesitation in
coming to the conclusion that the
judgment dated 18.07.2019 passed by the
learned Single Judge has proceeded on a
wrong factual premise, and, therefore,
cannot be sustained, and accordingly the
same is set aside.

21. The Special Appeal is, therefore,
allowed.

22. The writ petition stands
dismissed.
----------
(2020)06ILR A702
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.02.2020

BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Civil Misc. Writ Petition No. 1439 of 2020
Connected with
Writ A No. 1115 of 2020

Ramesh Chandra Verma ...Petitioner
Versus
Director of Education (Secondary) U.P.
Prayagraj & Ors. ...Respondents

Counsel for the Petitioner:
Sri Adarsh Singh, Sri Indra Raj Singh.

Counsel for the Respondents:
C.S.C., Sri Vivek Yadav

A. Intermediate College - Government
Residential Quarter - Illegal Encroachment -
Policy for occupation - Directions issued - All
the
concerned
officers
of
the
State