# State of U.P. & Ors v. Ram Rekha

- **Citation:** (2022) 11 ILRA 328
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-22
- **Case number:** Special Appeal No. 758 of 2020
- **Bench:** Pritinker Diwaker, Ashutosh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-ram-rekha-47820
- **Pages:** 4

## Headnote

A. Service Law - Absorption - In the light of
the Circular dated 28.3.2001 which refers to the
GO dated 7.5.1999, it is found that the Circular
and the GO presupposes the existence of a
post. As per the GO dated 7.5.1999 the post is
to be identified and the reservation applied. In
the event any post remains unfilled, the same is
11 All. State of U.P. & Ors. Vs. Ram Rekha
329
permitted to be carried over to the next
selection. Admittedly, the post of Cane
Weaver/Chair Weaver has been created
on
30.1.2015
under
orders
of
His
Excellency the Governor of the St. of U.P.
and the petitioner/respondent has been
appointed on 11.2.2015. The post of Cane
Weaver/Chair Weaver has thus come in
existence only in the year 2015 pursuant to the
proposal envisaged under the GO dated
7.5.1999 and 28.3.2001. In such view of the
matter, the learned Single Judge fell in
error in directing that the petitioner shall
be considered to be absorbed from the
date of issuance of the order dated
28.3.2001 and shall be entitled to all the
benefits admissible to a regular employee
and the order of the learned Single Judge
is liable to be modified. (Para 8)

Inpugned order is modified and directions are
issued that the petitioner shall be considered to
be absorbed from the date of his appointment
i.e. 11.2.2015 and shall be entitled to all the
benefits admissible to a regular employee. (Para
9)

Special appeal allowed. (E-4)

Precedent followed:

## Text

328 INDIAN LAW REPORTS ALLAHABAD SERIES
cannot be any presumption that in case the
petitioner would have raised the objections
regarding the capital cost as claimed by the
respondent no.4 or it would have filed
objection to the DIA report, the same
would not have been considered. However,
instead of participating in the public
hearing and making its objections, the
petitioner straightaway filed this public
interest petition.

66. There is yet another reason why this
Court need not interfere in this petition despite
having held this public interest petition to be
maintainable and the reason is that by means
of the order dated 10.03.2022 the Regulatory
Commission has finally approved the capital
cost after prudence check and verification and
considering the objections raised by the
various stakeholders which has resulted in disallowance of certain amount from the capital
cost claimed by the respondent no.4. Against
the order dated 10.03.2022 passed by the
Regulatory Commission, the respondent no.4
has preferred a statutory appeal under Section
111 of the Electricity Act, which is said to be
pending.

67. As regards the blacklisting of respondent
no.6 by the Regulatory Commission in the
year 2013-14, we may only observe that
pursuant to the order dated 16.12.2014 passed
by this Court in Writ Petition No.12395 (M/S)
of 2014 the matter was reconsidered and the
order of blacklisting was recalled while
maintaining
the
order
of
monetary
compensation against respondent no.6. This
assertion made by the petitioner loses its
significance in view of the findings recorded
by us above that Mr Mohit Goyal was neither
appointed by the Power Corporation as
Consultant to present its objections before the
Electricity Regulatory Commission nor was he
ever engaged by the Power Corporation for the
said purpose.

68. From what has been noticed and
found hereinabove, we are of the opinion
that the petitioner has not been able to
establish the allegations made in the writ
petition in respect of the process of
determination of tariff being vitiated on
account of the vice of conflict of interest as
alleged against Mr Mohit Goyal. In respect
of this issue, we thus conclude accordingly.

Order

69. For all the reasons given above,
we find that the writ petition lacks merit
which is hereby dismissed.

70. However, there will be no order as
to cost.
----------
(2022) 11 ILRA 328
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.09.2022

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Special Appeal No. 758 of 2020

State of U.P. & Ors. ...Appellants
Versus
Ram Rekha ...Respondent

Counsel for the Appellants:
Sri Subhash Rathi

Counsel for the Respondents:
Sri A.K. Sinha, Sri A.K. Sinha, Sri Abhishek
Kumar Kushwaha

A. Service Law - Absorption - In the light of
the Circular dated 28.3.2001 which refers to the
GO dated 7.5.1999, it is found that the Circular
and the GO presupposes the existence of a
post. As per the GO dated 7.5.1999 the post is
to be identified and the reservation applied. In
the event any post remains unfilled, the same is
11 All. State of U.P. & Ors. Vs. Ram Rekha
329
permitted to be carried over to the next
selection. Admittedly, the post of Cane
Weaver/Chair Weaver has been created
on
30.1.2015
under
orders
of
His
Excellency the Governor of the St. of U.P.
and the petitioner/respondent has been
appointed on 11.2.2015. The post of Cane
Weaver/Chair Weaver has thus come in
existence only in the year 2015 pursuant to the
proposal envisaged under the GO dated
7.5.1999 and 28.3.2001. In such view of the
matter, the learned Single Judge fell in
error in directing that the petitioner shall
be considered to be absorbed from the
date of issuance of the order dated
28.3.2001 and shall be entitled to all the
benefits admissible to a regular employee
and the order of the learned Single Judge
is liable to be modified. (Para 8)

Inpugned order is modified and directions are
issued that the petitioner shall be considered to
be absorbed from the date of his appointment
i.e. 11.2.2015 and shall be entitled to all the
benefits admissible to a regular employee. (Para
9)

Special appeal allowed. (E-4)

Precedent followed:

1. U.O.I. & anr. Vs National Federation of the
Blind & ors., (2013) 10 SCC 772 (Para 6)

Present special appeal assails judgment
and order dated 19.02.2020, passed by
learned Single Judge in Civil Misc. Writ
Petition No. 70254 of 2011.

(Delivered by Hon'ble Pritinker Diwaker, J.
& Hon'ble Ashutosh Srivastava, J.)

1. This intra court appeal has been
filed questioning the judgment and order
dated 19.2.2020 passed by the learned
Single Judge in Writ-A No. 70245 of 2011
(Ram Rekha versus Principal Secretary
Revenue, State of U.P. and others) whereby
the writ petition has been allowed and at
the same time, it has been held that the
petitioner/respondent shall be considered to
be absorbed from the date of issuance of
the order No. 598/65/1-2001-W(4)/97 dated
28.3.2001 and shall be entitled to all the
benefits admissible to a regular employee.

2. The record reveals that the writ
petition giving rise to the present intracourt appeal was filed seeking issuance of a
writ
of
mandamus
commanding
the
respondents to create a post of Cane
Weaver in District Mau in compliance of
the Circular dated 28.3.2001 and provide
regular appointment to the petitioner
thereof and to pay him regular salary.

3. It was alleged in the writ petition
that the petitioner/respondent is a 100%
visually handicapped person, which has
been duly certified by a certificate dated
26.6.1990 issued by the Chief Medical
Officer, Faizabad, U.P., in terms of
Government Order dated 7.4.1981. The
petitioner has undergone training of Cane
Weaver and has been issued Apprentice
Cane Weaver Certificate. The petitioner
was initially engaged on 5.5.1995 for one
month for repairing chairs through cane
weaving in the office of the District
Magistrate, Mau on daily wages of Rs.35/-
per day, which engagement was continued
from time to time under the orders of the
District Magistrate up to the year 2011. It
was asserted in the writ petition that a
policy decision have been taken vide
Government Order dated 7.5.1999 for
absorption of handicapped persons on the
posts of identified Group 'C' and 'D'. A
Circular dated 28.3.2001 was also issued in
which it was mentioned that if the post
identified for being filled up by a
handicapped person could not be filled, the
vacancy would be carried over to the next
selection. It was also stated in the writ
petition that pursuant to the Government
330 INDIAN LAW REPORTS ALLAHABAD SERIES
Order dated 7.5.1999, the post of Cane
Weaver was identified for reservation of
visually handicapped persons and in case,
any handicapped person could not be
selected or appointed on the vacancy
reserved for visually handicapped person,
then one vacancy would be kept aside for
being filled up on priority basis by a
visually handicapped person. Since, the
petitioner was continuing on the post of
Cane Weaver, he approached the Principal
Secretary
(Revenue)
by
way
of
representation in the year 2001 seeking
regularization of his services. However, the
regularization was declined on the ground
that there was no post available. The
petitioner thereafter made various other
representations seeking regularization, but
all efforts were in vain as the relief of
regularization was refused on the ground
that no post of Cane Weaver was created by
the Government.

4.

The
writ
petition
of
the
petitioner/respondent was entertained and a
detailed interim order was passed on
5.5.2014. In compliance whereof, the
District Magistrate, Mau is stated to have
written to the Government for creation of
post and at the same time as a measure of
compliance, the petitioner was directed to
be engaged on minimum of pay scale for a
period of one month subject to the final
orders passed in the writ petition. It appears
that the efforts of the petitioner bore some
fruits and the Principal Secretary (Revenue)
issued
a
Government
Order
dated
30.1.2015 mentioning therein that His
Excellency the Governor of State of U.P.,
had approved of a creation of post of Class
IV for the office of the Collectorate, Mau in
the pay scale of Rs.5,200-20,200 with the
Grade Pay of Rs.1800/- and that on the said
newly created post, the petitioner will be
absorbed.

5. By a second order dated 11.2.2015,
the petitioner/ respondent was appointed on
purely temporary post, subject to final
orders passed in the writ petition filed by
the petitioner.

6. The learned Single Judge by order
impugned has proceeded to allow the writ
petition observing that there was no denial
of the district authorities or even by the
Department of Revenue of the petitioner
being 100% visually handicapped person or
that he had been working as Cane Weaver
with effect from 1995 @ Rs.35/- on daily
wages. There was also no denial of the
policy decision taken by the Government
by issuance of Government Order dated
7.5.1999 for reserving the post of visually
handicapped persons in Group 'C' and 'D'
services of the State and also of the
Government Order dated 28.3.2001 and
proposal to create a post of Cane
Weaver/Chair
Weaver
and
for
its
identification as a post reserved for visually
handicapped person. The learned Single
Judge while allowing the writ petition has
also noted the fact that the case of the
petitioner/respondent was unique in the
sense that although the policy decision was
taken and identification of the post meant
for visually handicapped person of Cane
Weaver was done by the Government, but
no further action was taken to implement
the said policy decision taken under
Government Orders dated 7.5.1999 and
28.3.2001. The learned Single Judge in
terms of the ratio of the decision of the
Apex Court in the case of Union of India
and another versus National Federation
of the Blind and others, (2013) 10 SCC
772 proceeded to direct the respondent to
continue with the post created for District
Mau by the order dated 30.01.2015 of His
Excellency the Governor of the State of
U.P. and issued the impugned directions.
11 All. Jitendra Singh Vs. State of U.P. & Ors.
331

7. Smt. Subhash Rathi, learned
counsel for the appellant while assailing the
order of the learned Single Judge submits
that the learned Single Judge fell in error in
directing the petitioner to be absorbed from
the date of issuance of the order dated
28.3.2001 inasmuch as the post in question
came to be created only under orders of His
Excellency the Governor of the State of
U.P., dated 30.1.2015. According to her,
since the post was not available on
28.3.2001, as it was created only on
30.1.2015
against
which
the
petitioner/respondent was appointed on
11.2.2015, the services of the petitioner
could not be regularized from 28.3.2001
along with all service benefits and in such
view of the matter, the order of the learned
Single Judge is liable to be set side or
suitably modified.

8. In the opinion of the Court, the
submission advanced by Smt. Rathi on
behalf of the appellants has substance.
Testing the submissions in the light of the
Circular dated 28.3.2001 which refers to
the Government Order dated 7.5.1999 filed
as Annexure-12 to the writ petition, we find
that the Circular and the Government Order
presupposes the existence of a post. As per
the Government Order dated 7.5.1999 the
post is to be identified and the reservation
applied. In the event any post remains
unfilled, the same is permitted to be carried
over to the next selection. Admittedly, the
post of Cane Weaver/Chair Weaver has
been created on 30.1.2015 under orders of
His Excellency the Governor of the State of
U.P. and the petitioner/respondent has been
appointed on 11.2.2015. The post of Cane
Weaver/Chair Weaver has thus come in
existence only in the year 2015 pursuant to
the
proposal
envisaged
under
the
Government Order dated 7.5.1999 and
28.3.2001. In such view of the matter, we
are of the opinion that the learned Single
Judge fell in error in directing that the
petitioner shall be considered to be
absorbed from the date of issuance of the
order dated 28.3.2001 and shall be entitled
to all the benefits admissible to a regular
employee and the order of the learned
Single Judge is liable to be modified.

9. Accordingly, we modify the order
impugned and direct that the petitioner
shall be considered to be absorbed from the
date of his appointment i.e. 11.2.2015 and
shall be entitled to all the benefits
admissible to a regular employee. The intra
court appeal is allowed to the extent
indicated above.
----------
(2022) 11 ILRA 331
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.11.2022

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Writ-A No. 2551 of 2022

Jitendra Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ajay Kumar Gautam

Counsel for the Respondents:
C.S.C., Sri Shri Kant Shukla

A.
Service
Law
-
Compassionate
Appointment
-
Courts
cannot
order
appointment on compassionate grounds
dehors the provisions of the statutory
regulations and instructions and that
hardship of a candidate does not entitle
him to compassionate appointment dehors
the Statutory Provisions. Also, it is settled
law that norms prevailing on the date of
consideration of the appointment would