# Sumer Singh v. State of U.P. & Anr

- **Citation:** (2014) 2 ILRA 956
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-08-20
- **Case number:** Service Single No. 2062 of 2007
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sumer-singh-v-state-of-u-p-anr-43051
- **Pages:** 5

## Headnote

Constitution of India, Art.-226-Absorption
in service-on basis of broker service w.e.f.
1994 to 97-claiming parity with other
similarly situated employees who got
absorption-held-in absence of statutory
provisions-appointment without following
mode of recruitment-no right-parity can
not make right with two wrongs-petition
dismissed.

Held: Para-11
Thus in the absence of any statutory
provision and also in view of the admitted
factual position that the petitioner's initial
recruitment was not in accordance with
the constitutional scheme enshrined under
Article 16 of the Constitution, the relief
sought by petitioner cannot be granted.

Case Law discussed:
2007(3) ADJ 138; 2007(3) ADJ 46; 2004(4)
ESC 2470=2005 ALJ 1006; 2004(54) ALR 85;
2006(4) SCC 1; 2009(3)SCC 35; 2009(7)SCC
205; 2011 (2) SCC 429; (2010) 2 SCC 422;
(2010) 2 SCC 728; AIR 2000 SC 2306; AIR
2003 SC 3983; AIR 2004 SC 2303; AIR 2005
SC 5565; AIR 2006 SC 1142.

## Text

956 INDIAN LAW REPORTS ALLAHABAD SERIES
evidences and statements. It is not a case
where it can be said that the principles of
natural justice have been violated.

32. In light of the decisions cited
herein above, we do not find any reason
or ground to hold that the finding of facts
recorded by the Enquiry Judge are in any
manner perverse so as to warrant any
interference in exercise of our jurisdiction
under Article 226 of the Constitution of
India.

33. We are unable to hold that the
disciplinary
proceeding
as
well
as
punishment order is violative of Article
14, 16 and 311 (2) of the Constitution of
India besides being in transgression of the
1999 rules and other statutory provisions.
The dismissal order is neither arbitrary
nor harsh nor it can be said to be
disproportionate to the gravity of the
charges.

34. We are conscious of the fact that
scope of judicial scrutiny is very limited.
Admittedly, a Judge must be a man of
high integrity, honesty and required to
have moral vigour, ethical firmness and
impervious
to
corrupt
or
venial
influences. He is required to keep most
exacting standards of propriety in judicial
conduct. Any conduct which tends to
undermine public confidence in the
integrity and impartiality of the court
would be deleterious to the efficacy of
judicial process.

35. We are also conscious of the fact
that the standard of conduct is higher than
expected of a layman and also higher than
expected of an advocate. In fact, even his
private life must adhere to high standards
of probity and propriety, higher than those
deemed acceptable for others. Therefore,
the Judge can ill-afford to seek shelter
from the fallen standard in the society.

36. From the perusal of above noted
laws and factual position of the case, it is
evident that the departmental proceeding
has been concluded in a lawful manner
and the petitioner has been provided with
an opportunity of being heard and to
participate
in
the
departmental
proceedings. As discussed earlier, charge
nos. 1 and 2 have been found proved
though
the
petitioner
denied
his
involvement with the car in question, but
the finding of the Enquiry Judge was
recorded otherwise based on materials
available on record. Hence, the stand
taken by the petitioner that the rules of
natural justice has been violated while
conducting the enquiry is not at all
tenable in the eyes of law. The order
passed by the State Government dated
15.04.2011, dismissing the petitioner
from service, cannot be faulted with in
any manner.

37. Accordingly, we find that this
writ petition is devoid of merit and is
liable to be dismissed. It is dismissed.

38. No order is passed as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.08.2014

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Service Single No. 2062 of 2007
Along with Service Single No. 9533 of
2006

Sumer Singh ...Petitioner
Versus
State of U.P. & Anr. ...Respondents
2 All]. Sumer Singh Vs. State of U.P. & Anr.
957
Counsel for the Petitioner:
Sri S.C. Srivastava

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226-Absorption
in service-on basis of broker service w.e.f.
1994 to 97-claiming parity with other
similarly situated employees who got
absorption-held-in absence of statutory
provisions-appointment without following
mode of recruitment-no right-parity can
not make right with two wrongs-petition
dismissed.

Held: Para-11
Thus in the absence of any statutory
provision and also in view of the admitted
factual position that the petitioner's initial
recruitment was not in accordance with
the constitutional scheme enshrined under
Article 16 of the Constitution, the relief
sought by petitioner cannot be granted.

Case Law discussed:
2007(3) ADJ 138; 2007(3) ADJ 46; 2004(4)
ESC 2470=2005 ALJ 1006; 2004(54) ALR 85;
2006(4) SCC 1; 2009(3)SCC 35; 2009(7)SCC
205; 2011 (2) SCC 429; (2010) 2 SCC 422;
(2010) 2 SCC 728; AIR 2000 SC 2306; AIR
2003 SC 3983; AIR 2004 SC 2303; AIR 2005
SC 5565; AIR 2006 SC 1142.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. In both these writ petitions, claim
of petitioner for absorption is involved
and, therefore, both have been heard
together and are being decided by this
common judgement.

2. Heard Sri S.C. Srivastava, learned
counsel for petitioner, learned Standing
Counsel for respondents and perused the
record.

3. Petitioner is claiming absorption
pursuant to service rendered by him in
broken spells during 1994 to 1997 in State
Finance Commission. It is stated that
some other similarly situated persons
have
already
been
absorbed
and,
therefore, petitioner is also entitled for the
same
treatment.
However,
Despite
repeated query, learned counsel for
petitioner could not show any provisions
under
which
petitioner
can
claim
absorption as a matter of right.

4. It is not disputed that the
petitioner was never appointed or engaged
after the advertisement of vacancies,
complying with the provisions of Article
16 of the Constitution of India, i.e., by
giving equal opportunity for public
employment to all eligible persons. The
petitioner also could not place before the
Court any statutory provision whereunder
he can claim absorption. Similar question
was considered in Imtiaz Ahmad Vs.
Regional Deputy Director of Census
Operation and others, 2007(3) ADJ 138
and referring to various Government
Orders dealing in para 7 it was held as
under:

"I have heard learned counsel for the
petitioner and perused the record. It is not
disputed that in certain broken spells as
and
when
census
operations
were
undertaken by the Government of India,
the petitioner was engaged in the census
department from time to time. The
aforesaid
appointment
was
purely
temporary and therefore after completion
of the work or due to reduction in the
establishment of census department, he
was
terminated
or
discontinued
whereagainst no grievance was raised by
the petitioner at any point of time. His
claim
is
now
confined
to
regular
appointment under the State Government
considering his status as a "retrenched
958 INDIAN LAW REPORTS ALLAHABAD SERIES
employee". For the purpose of the present
case, even if the petitioner is treated to be
a retrenched employee, learned counsel
for the petitioner failed to point out any
statutory provision or executive order
having force of law entitling the petitioner
for regular appointment in a class-III or
class-IV post under the State Government.
The government order dated 22.4.1987
placed on record as Annexure-1 to the
rejoinder affidavit shows that the Census
Directorate,
Government
of
India
communicated to all the Head of
Departments, District Magistrates and
other employment officers in the State of
U.P. that the employees who have worked
in the Census Department for about three
and half years in 1981 census operations
and some of them have crossed maximum
age required for employment in the
Government service and, therefore, they
were allowed relaxation of three years in
the age vide Government Order no.
41/2/1967-Karmik-2
dated
13.2.1985
extended upto 12.2.1988, and therefore
the said persons may be considered in the
service
of
the
State
Government
extending the said relaxation in age. The
aforesaid order, therefore, only provides
relaxation in maximum age but nowhere
shows that the process of recruitment
applicable to class-III and class-IV posts
in the state of U.P. shall not be followed
for appointment of the said retrenched
employees of the census department.
Moreover, a bare reading of the aforesaid
government order shows that it is
applicable
to
such
employees
who
continuously worked for three and half
years pursuant to 1981 census and were
retrenched on 30.6.1984. On the contrary,
the petitioner was engaged for short
periods in 1981 and 1982 only, but there
is no continuous service of three and half
years as contemplated in the aforesaid
government
order.
Hence,
in
no
circumstance the said government order
help the petitioner in any manner. In the
state of U.P., recruitment to class-III posts
prior to 1989 was being governed by the
Subordinate Offices Ministerial Staff
(Direct Recruitment) Rules, 1975 which
were substituted by another set of rules on
16.3.1985, i.e., U.P. Subordinate Offices
Ministerial Staff (Direct Recruitment)
Rules, 1985which continued to hold field
until substituted in their entirety by U.P.
Procedure for Direct Recruitment for
Group "C" Posts (Outside the Purview of
The U.P. Public Service Commission)
Rules 2001. In all the aforesaid Rules,
there is no provision for appointment of a
retrenched employee without undergoing
the process of recruitment. Only certain
concessions in the matter of age and
educational qualifications etc. have been
provided but otherwise a retrenched
employee has to participate in the process
of
recruitment
with
other
eligible
candidates as and when the recruitment
process is initiated. In the matter of
selection and assessment of merit under
2001 Rules, certain weightage is provided
but there is no provision for regularization
of such employees to the exclusion of
regular process of recruitment. In view of
the statutory rules, no relief can be
granted to the petitioner contrary thereto."

5. A similar view has been taken by
a Division Bench of this Court (of which I
was also a Member) in Sayed Mohammad
Mahfooz Vs. State of U.P. and others
2007(3) ADJ 46.

6. Besides above, I may also place
on record that in certain cases some
persons who were engaged in election
office as Junior Clerks for some short
span from time to time were directed to be
2 All]. Sumer Singh Vs. State of U.P. & Anr.
959
regularised in some of the judgements of
Hon'ble Single Judges and one of such
judgment is in Writ Petition No. 52586 of
1999, Dinesh Kumar Shukla Vs. State of
U.P. and others. The aforesaid judgement
as well as others taking similar view were
assailed in intra-Court appeals before this
Court and all those appeals were allowed,
setting aside the judgements of Hon'ble
Single Judges and the judgment is
reported in 2004(4) ESC 2470=2005 ALJ
1006, State of U.P. and others Vs. Sanjay
Kumar Pandey and other. The Division
Bench held that no regularisation or
absorption contrary to rules can be
claimed. Taking this view it also followed
an earlier Division Bench decision in
State of U.P. Vs. Rajendra Prasad,
2004(54) ALR 85. Against the judgment
of Division Bench in Sanjay Kumar
Pandey, the Special Leave Petition No.
5735 of 2009 has also been dismissed by
Apex
Court
vide
judgment
dated
22.08.2012.

7. The entire issue can also be
looked into in the light of Constitution
Bench decision in Secretary, State of
Karnataka Vs. Uma Devi 2006 (4) SCC 1
followed in State of West Bengal &
others Vs. Banibrata Ghosh & others
2009 (3) SCC 250; Council of Scientific
& Industrial Research & others Vs.
Ramesh Chandra Agarwal & another
2009 (3) SCC 35; General Manager,
Uttaranchal Jal Sansthan Vs. Laxmi Devi
& others 2009 (7) SCC 205; and, State of
Rajasthan and others Vs. Daya Lal &
others, 2011(2) SCC 429.

8. So far as absorption of other
persons is concerned, in Union of India &
another Vs. Kartick Chandra Mondal &
another (2010) 2 SCC 422, the Court has
gone to the extent that even if some other
persons similarly placed have been
absorbed, that cannot be a basis to grant a
relief by the Court which is otherwise
contrary to statute. In para 25 of
judgment, the Court said:

"Even assuming that the similarly
placed persons were ordered to be
absorbed, the same if done erroneously
cannot
become
the
foundation
for
perpetuating further illegality. If an
appointment
is
made
illegally
or
irregularly, the same cannot be the basis
of further appointment. An erroneous
decision cannot be permitted to perpetuate
further error to the detriment of the
general welfare of the public or a
considerable section. This has been the
consistent
approach
of
this
Court.
However, we intend to refer to a latest
decision of this Court on this point in the
case of State of Bihar v. Upendra Narayan
Singh and Ors. (2009) 5 SCC 65, the
relevant portion of which is extracted
hereinbelow:

"67. By now it is settled that the
guarantee
of
equality
before
law
enshrined in Article 14 is a positive
concept and it cannot be enforced by a
citizen or court in a negative manner. If
an illegality or irregularity has been
committed in favour of any individual or
a group of individuals or a wrong order
has been passed by a judicial forum,
others cannot invoke the jurisdiction of
the higher or superior court for repeating
or multiplying the same irregularity or
illegality or for passing wrong order ..."

9. In State of Karnataka & others
Vs. Gadilingappa & others (2010) 2 SCC
728, the Court reiterated that it is well
settled principal of law that even if a
mistake is committed in an earlier case,
960 INDIAN LAW REPORTS ALLAHABAD SERIES
the same cannot be allowed to be
perpetuated.

10. Learned counsel for petitioner
failed to show that absorption of others
was consistent with the scheme of
statutory provisions and, therefore, was
made validly. It is well settled that if a
wrong has been committed by the
respondents in respect to some other
persons, that will not provide a cause of
action to claim parity on the ground of
equal treatment since the equality in law
under Article 14 is applicable for claiming
parity in respect to legal and authorized
acts. Two wrongs will not make one right.
The Apex Court in the case of State of
Bihar and others Vs. Kameshwar Prasad
Singh and another, AIR 2000 SC 2306;
Union of India and another Vs. International
Trading Co. and another, AIR 2003 SC
3983; Lalit Mohan Pandey Vs. Pooran
Singh and others, AIR 2004 SC 2303; M/s
Anand Buttons Ltd. etc. Vs. State of
Haryana and others, AIR 2005 SC 5565;
and Kastha Niwarak G. S. S. Maryadit,
Indore Vs. President, Indore Development
Authority, AIR 2006 SC 1142 has held that
Article 14 has no application in such cases.

11. Thus in the absence of any
statutory provision and also in view of the
admitted
factual
position
that
the
petitioner's initial recruitment was not in
accordance with the constitutional scheme
enshrined under Article 16 of the
Constitution,
the
relief
sought
by
petitioner cannot be granted.

12. Both the writ petitions lack merit
and are dismissed accordingly.

13. Interim order, if any, stands
vacated.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.08.2014

BEFORE
THE HON'BLE RAJES KUMAR, J.
THE HON'BLE OM PRAKASH-VII, J.

First Appeal from Order No. 2455 of 2014

National Insurance Co. Ltd. Bulandsahar
 ...Appellant
Versus
Smt. Pushpa Devi & Ors. ...Claimants

Counsel for the Petitioner:
Sri Saral Srivastava

Counsel for the Respondents:
Sri Dharmendra Kumar Gupta
Smt. Kiran Gupta

Motor Vehicle Act 1988-Section 173-Appeal
against award Accident Claim Tribunal-on
ground of contributory negligence-HRA not
to be assessed as income of deceased-and
family pension should be deducted-heldfinding
recorded
by
Tribunal-perfectly
justified accident caused due to rash and
negligent driving of Tata Sumo-in view of
law laid down by Apex Court-HRA being
part and partial of salary-family pensionbeing right of the dependent of deceased
employee not be deducted-view taken by
tribunal-perfectly
justified-can
not
be
interfered-Appeal dismissed.

Held: Para-9
So far as submission of learned counsel for
the appellant that since after the death of
the deceased, legal representative of the
deceased
has
been
given
the
compassionate appointment and the wife is
getting the family pension, therefore, to
that extent, amount of compensation and
loss of dependency should be reduced, has
no substance.

Case Law discussed:
JT 2011(4), 232; (2013) 7 SCC 476; 1999(1)
SCC 90; First Appeal from Order No. 84 of