# that the right of redemption is of this kind. (See Thota China Subba Rao v. Mattapalli Raju (AIR 1950 FC1)"

- **Citation:** (2002) 3 ILRA 932
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-11-15
- **Case number:** Special Appeal No. 172 of 2000
- **Bench:** Shyamal Kumar Sen, C.J. R.K. Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/that-the-right-of-redemption-is-of-this-kind-see-thota-china-subba-rao-v-40038
- **Pages:** 6

## Headnote

Sri Sabhajeet Yadav
S.C.

Counsel of the Respondent:
Sri Jai Krishna Tiwari
Sri Shashi Nandan

Constitution of India, Article 226 Service
Law- selection on the Post of Machine
Asstt.- Petitioner name found place in
selection list- before appointment ban
imposed- authorities assured to give
appointment after the ban lifted- even
after the ban expiry of four years from
the deleation of ban- No appointment
given - whether can the appointment
claimed as a matter of Right? Held- 'yes'.
http://www.allahabadhighcourt.nic.in
3 All] State of U.P. and another V. Rakesh Kumar 933
Held- Para 8
The vacancy on the post of Machine
Assistant occurred on 3rd November,
1989, i.e. within one year of the
preparation of the select list which was
prepared on 24th January, 1989. The
select list was valid and was in force
during
that
period.
Thus,
the
respondent-writ petitioner was entitled
for appointment on the said post. The
submission of the learned standing
counsel that the person whose name has
been placed in the select list has no right
to claim the post, cannot be accepted in
view of the authoritative pronouncement
in the case of S. Govindaraju (supra)
which has been followed by this Court in
the
case
of
Pradeep
Kumar
Misra
(supra).
Case law discussed:
(1981) 2 SCC. 673
1986 (3) SCC.-273
1991 (2) UPLBEC-796
1996 (3) UPLBEC-1944
J.T. 2001 (7) SCC.-519

## Text

http://www.allahabadhighcourt.nic.in
932 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
action" meaning thereby that it was not a
continuing wrong based on a recurring
cause of action. The claim to be paid the
correct salary computed on the basis of
proper pay fixation is a right, which
subsists during the entire tenure of service
and can be exercised at the time of each
payment of the salary when the employee
is entitled to salary computed correctly in
accordance with the rules. This right of a
government servant to be paid the correct
salary throughout his tenure according to
computation made in accordance with the
rules is akin to the right of redemption,
which is an incident of a subsisting
mortgage and subsists so long as the
mortgage itself subsists, unless the equity
of redemption is extinguished. It is settled
that the right of redemption is of this kind.
(See
Thota
China
Subba
Rao
V.
Mattapalli Raju (AIR 1950 FC1)".

10. The Delhi High Court in the case
of Major Rajinder Singh (supra) after
considering the aforesaid decision of Hon.
Supreme
court
has
held
that
the
pensionery benefits accrue from month to
month and is thus analogous to the
concept of a salary which a person would
be entitled during the course of his
service. Thus, the principles laid down in
M.R. Gupta's case (supra) apply to the
case where the claim is of pension. Thus,
if
a
person
approaches
the
Court
belatedly, the same cannot be held against
him in denying the benefits of pension at
least from the period he approached the
Court.

11. In view of the aforesaid
decision, we are of the view that the
impugned judgment of the learned Single
Judge, dismissing the writ petition only
on account of delay suffers from legal
infirmity and the writ petition is required
to be decided on merit. In this view of the
matter, the impugned judgement and
order dated 29.8.2002 passed by the
learned Single Judge, is set aside and the
writ petition is remanded back for being
decided on merit before the learned Single
Judge dealing with such matter. Since the
counter and rejoinder affidavit have been
filed in the writ petition, which is too old,
the writ petition shall be listed in the week
commencing 2.12.2002.

12. In the result, the Special Appeal
is allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD NOVEMBER 15, 2002

BEFORE
THE HON'BLE SHYAMAL KUMAR SEN, C.J.
THE HON'BLE R.K. AGRAWAL, J.

Special Appeal No. 172 of 2000

State of U.P. and another
...Appellants
Versus
Rakesh Kumar

 ...Respondents

Counsel for the Appellants:
Sri Sabhajeet Yadav
S.C.

Counsel of the Respondent:
Sri Jai Krishna Tiwari
Sri Shashi Nandan

Constitution of India, Article 226 Service
Law- selection on the Post of Machine
Asstt.- Petitioner name found place in
selection list- before appointment ban
imposed- authorities assured to give
appointment after the ban lifted- even
after the ban expiry of four years from
the deleation of ban- No appointment
given - whether can the appointment
claimed as a matter of Right? Held- 'yes'.
http://www.allahabadhighcourt.nic.in
3 All] State of U.P. and another V. Rakesh Kumar 933
Held- Para 8
The vacancy on the post of Machine
Assistant occurred on 3rd November,
1989, i.e. within one year of the
preparation of the select list which was
prepared on 24th January, 1989. The
select list was valid and was in force
during
that
period.
Thus,
the
respondent-writ petitioner was entitled
for appointment on the said post. The
submission of the learned standing
counsel that the person whose name has
been placed in the select list has no right
to claim the post, cannot be accepted in
view of the authoritative pronouncement
in the case of S. Govindaraju (supra)
which has been followed by this Court in
the
case
of
Pradeep
Kumar
Misra
(supra).
Case law discussed:
(1981) 2 SCC. 673
1986 (3) SCC.-273
1991 (2) UPLBEC-796
1996 (3) UPLBEC-1944
J.T. 2001 (7) SCC.-519

(Delivered by Hon'ble R.K. Argawal, J.)

1. The present special appeal has
been filed against the judgment and order
dated 10th March, 1999 passed by the
learned Single Judge whereby a direction
in the nature of writ of mandamus has
been issued commanding the present
appellants who were respondents in the
writ petition to give appointment to the
respondent-writ petitioner on the post of
Machine Assistant which fell vacant on
3rd
November,
1989.
This
Court,
however, directed that the service shall be
deemed to have commenced after one
month from the date when he had
approached this Court namely, 14th
September, 1993, and the said period shall
be counted towards his service. Further, if
the petitioner has crossed the age limit in
the meantime, the same should be
overlooked since he had become eligible
for appointment on 3rd November, 1989.
However, he shall not be entitled for
payment of salary for the period till the
date of his appointment pursuant to this
order.
In
case,
the
petitioner's
appointment is made beyond the period of
four months as directed by the learned
single Judge, in that event, he shall be
entitled to payment of salary immediately
after expiry of four months from the date
a copy of this order is produced before the
concerned respondent.

2. Briefly stated, the facts giving rise
to the present special appeal, are as
follows:

3. The appellant advertised post of
Machine
Assistant.
It
appears
that
vacancy against three posts was already in
existence.
The
fourth
vacancy
was
anticipated on account of imminent
promotion of one of the Machine
Assistants to the post of Rotary Machine
Operator. A select list was prepared on
24th January, 1989 against four posts of
Machine Assistants. The name of the
respondent-writ petitioner was placed at
serial no. 4 in the list. Persons appearing
at serial nos. 1,2 and 3 were given
appointment on the existing vacant posts
of Machine Assistants. When Nasir
Ahmad, Machine Assistant was promoted
to the post of Rotory Machine Operator
vide order dated 29th August, 1989 the
post held by Nasir Ahmad fell vacant on
3rd November, 1989 on his joining the
promoted
post.
On
this
post
the
respondent-writ petitioner was to be
accommodated. However, by reason of a
ban imposed by the State Government on
26th February, 1989 from filling up the
post, the petitioner was informed through
letter dated 21st December, 1989 that he
could not be appointed because of the ban
imposed on direct recruitment, but he will
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934 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
be given appointment as soon as the ban
is lifted. The letter dated 21st December,
1989 is available on record as Annexure 1
to the counter affidavit filed by the
present appellant in the writ petition. The
ban was lifted in the year 1993 but the
petitioner was not given any appointment.
The petitioner approached this Court by
filing Civil Misc. Writ Petition No. 32743
of 1993, giving rise to the present special
appeal. The learned single Judge allowed
the writ petition and issued certain
directions by judgment and order dated
10th March, 1999 which has been
challenged in the present appeal.

4. We have heard Sri Sabhajeet
Yadav, learned standing counsel for the
appellants and Sri Jai Krishna Tiwari
holding brief of Sri Shashi Nandan,
learned Advocate appearing on behalf of
respondent-writ petitioner.

5. Sri Sabhajeet Yadav, learned
standing counsel submitted that the life of
the select list which was prepared on 24th
January, 1989 was only for one year and
if the respondent-writ petitioner has not
been given appointment during the
aforesaid period the select list ceases to
remain in existence and the respondentwrit
petitioner
cannot
claim
his
appointment as a matter of right. He
further submitted that in the year 1989 the
State Government had imposed a ban on
recruitment and in view of this subsequent
development appointment was not given,
thus, the respondent-writ petitioner cannot
claim any right of appointment. He
further submitted that merely the name of
the respondent-writ petitioner was placed
in the select list, it did not give any right
of being appointed. According to him, in
the year 1993 when the ban was lifted by
the State Government, the post of
Machine Assistant was to be filled up
from amongst the candidates belonging
Scheduled Caste, Scheduled Tribes and
Backward Class category as it fell in the
share of reserved category post. Thus, the
learned single Judge was not justified in
issuing
writ
of
mandamus
to
the
appellants and directing them for giving
appointment
to
the
respondent-writ
petitioner.

6. Sri Jai Krishna Tiwari, learned
counsel for the respondent-writ petitioner,
however submitted that the name of the
respondent-writ petitioner was placed at
serial no. 4 in the select list and in fact the
advertisement was made for filling the
post of Machine Assistant in respect of
the vacancy which was to come into
existence during the year. He further
submitted
that
the
respondent-writ
petitioner was informed vide letter dated
21st December, 1989 that he would be
given appointment immediately when the
ban is lifted and, therefore, after the ban
has been lifted he cannot be denied
appointment as the promise held out to
the petitioner binds the appellants on
account
of
doctrine
of
promissory
estoppel. The respondent-writ petitioner
awaited for more than four years in the
hope of being appointed on the post of
Machine Assistant. Thus the learned
single Judge was justified in issuing writ
of mandamus commanding the appellants
to give appointment to the respondentwrit petitioner. He relied upon a decision
of the Supreme Court in the case of Bhim
Singh and others vs. State of Haryana
and others [(1981) 2 SCC 673]. He
further submitted that the person whose
name is included in the select list acquires
a right of appointment. In this behalf he
cited a decision of the Supreme Court in
S. Govindaraju vs. Karnataka S.R.T.C.
http://www.allahabadhighcourt.nic.in
3 All] State of U.P. and another V. Rakesh Kumar 935
and another [(1986) 3 SCC 273]. He next
submitted that a person who has been
selected for a particular post is entitled to
be appointed and any ban on appointment
placed by the Government cannot take
away the right to be appointed as held by
this Court in Pradeep Kumar Mishra and
others vs. U.P. State Road Transport
Corporation,
Lucknow
and
others
[(1991) 2 UPLBEC 796]. He also relied
upon a decision of this Court in Vijay
Kumar Gupta vs. U.P. State Road
Transport Corporation, Lucknow and
others [(1996) 3 UPLBEC 1944] in which
this Court had taken the similar view.

7. In rejoinder Sri Sabhajeet Yadav
relied upon a decision of the Supreme
Court in the case Sri Kant Tripathi and
others vs. State of U.P. and others (JT
2001 (7) SC 519) wherein Hon'ble the
Supreme Court in paragraph 35 of the
judgment has interpreted the words "the
vacancies likely to occur in the next two
years" and held that the expression
"vacancies likely to occur in the next two
years"
would
obviously
mean
the
vacancies, which in all probability, would
occur and can only refer to the cases when
people would superannuate within the
next two years and nobody can anticipate
as to how many people would die or how
many would compulsorily be retired or
removed or dismissed. According to him
the vacancy, which may be caused on
account of promotion of Nasir Ahmad,
could not have been taken into account
for making the select list. Thus, the
respondent-writ petitioner was not entitled
for being appointed.

8. Having heard learned counsel for
the parties we find that it is not in dispute
that the name of the respondent-writ
petitioner was included at serial no.4 in
the select list for the post of Machine
Assistant. There already existed three
vacancies which were filled up by the
persons whose names stood at serial nos.
1,2 and 3. One post of Machine Assistant
was to fall vacant in the year 1989 as
Nasir Ahmad was due for promotion and
that is why select list of four persons were
prepared by the authorities. Nasir Ahmad
was, in fact, promoted on 29th August,
1989 and he joined the promotional post
on 3rd November, 1989. When the
respondent-writ petitioner approached the
authorities for giving appointment he was
informed in writing that on account of a
ban imposed by the State Government on
direct recruitment he cannot be given
appointment but as soon as the ban is
lifted he shall be given an appointment.
The ban was lifted in the year 1993. The
respondent-writ petitioner waited for
more than four years in the hope of
getting an appointment pursuant to the
promise made by the authorities as
contained
in
the
letter
dated
21st
December, 1989. The question is, as to
whether, after the ban was lifted the
respondent-writ petitioner is entitled for
being appointed on the post of Machine
Assistant or not. The Hon'ble Supreme
Court in the case of S. Govindaraju
(supra) has held that once a candidate is
selected and his name is included in the
select list for appointment in accordance
with the regulations he gets a right to be
considered for appointment as and when
vacancy arises. Thus, the respondent-writ
petitioner gets a right to be considered for
appointment on the post of Machine
Assistant since his name was placed in the
select list. It is not disputed that the
authorities
vide
letter
dated
21st
December,
1989
had
assured
the
respondent-writ petitioner that he shall be
given an appointment immediately on the
http://www.allahabadhighcourt.nic.in
936 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
lifting
of
the
ban
by
the
State
Government. He waited for more than
four years. As held by the Supreme Court
in the case of Bhim Singh (supra) the
respondent-writ petitioner having bona
fide believed the representation made by
the State and having acted thereon cannot
now be defeated of his hope to get
appointment which has converted into his
right on account of the application of the
doctrine of promissory estoppel. Thus, the
respondent-writ petitioner is entitled for
appointment on the post of Machine
Assistant as soon as the State Government
lifts the ban. It may, however, be
mentioned here that this Court in the case
of Pradeep Kumar Mishra (supra) has
held that the selected candidates for a
particular
trade
are
entitled
to
be
appointed against the vacancies which
occurred during the period for which the
select list/waiting list is stipulated to
remain valid. The vacancy on the post of
Machine Assistant occurred on 3rd
November, 1989, i.e. within one year of
the preparation of the select list which
was prepared on 24th January, 1989. The
select list was valid and was in force
during that period. Thus, the respondentwrit
petitioner
was
entitled
for
appointment on the said post. The
submission
of
the learned standing
counsel that the person whose name has
been placed in the select list has no right
to claim the post, cannot be accepted in
view of the authoritative pronouncement
in the case of S. Govindaraju (supra)
which has been followed by this Court in
the case of Pradeep Kumar Misra
(supra). So far as the decision of Hon'ble
Supreme Court in the case of Sri Kant
Tripathi (supra) is concerned Hon'ble
Supreme Court while interpreting the
phrase "the vacancies likely to occur in
the next two years" in rule 8 (1) of the
U.P. Higher Judicial Service Rules, 1975
has held that nobody can anticipate as to
how many people would die or how many
would compulsorily be retired or removed
or dismissed or even would be elevated to
the
High
Court.
The
expression
"vacancies likely to occur in the next two
years"
would
obviously
mean
the
vacancies, which in all probability, would
occur. In other words, it can only refer to
the
cases
when
people
would
superannuate within the next two years. In
view of the principle laid down by the
Supreme Court in the aforesaid decision,
we find that the vacancy on account of
promotion of Nasir Ahmad from the post
of Machine Assistant to Rotory Machine
Operator was due in the year 1989 and,
therefore, the authorities have rightly
anticipated the said vacancy. Thus, the
authorities were perfectly justified in
preparing the select list for fourth vacancy
which was likely to occur in that year. So
far as the question that the fourth post of
Machine Assistant fell was to be filled up
from amongst the reserved category
candidate is concerned, suffice it to
mention that the learned standing counsel
has not brought on record any material to
show that the said post was to be filled up
from the reserved category candidate.
Thus, the plea taken by the learned
standing counsel cannot be sustained.

9. In view of the foregoing
discussions we hold that the respondentwrit petitioner was entitled for being
given appointment on the post of Machine
Assistant.

10. In the result we do not find any
merit in this special appeal. The special
appeal,
accordingly,
fails
and
is
dismissed.
---------
http://www.allahabadhighcourt.nic.in
3 All] U.P. State Spinning Co. Ltd. V. R.S. Pandey and another 937
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.11.2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE R.K. AGRAWAL, J.

Special Appeal No. 743 of 1996

U.P. State Spinning Company Ltd.

 ...Appellant
Versus
Shri R.S. Pandey and another

 ...Respondents

Counsel for the Appellant:
Sri V.B. Singh
Sri Vijay Sinha

Counsel for the Respondents:
Sri R.N. Singh
Sri G.K. Singh
Sri V.K. Singh

Constitution
of
India-
Article
226-
Alternative
Remedy-
Writ
Petition
pending for last 9 to 15 years- counterRejoinder
affidavits
have
been
exchanged-
arbitrary
action
of
the
authorities under challenged- can not be
dismissed on alternative ground.

Held- Para 8

Learned counsel for the parties we find
that the appellant U.P. State Spinning
Company Ltd. is a State Government
undertaking and is fully controlled by the
State of U.P. It thus falls within the term
'State' within the meaning of Article 12
of the Constitution of India. Thus any of
its
action
which
is
arbitrary
and
unreasonable can be challenged by an
aggrieved person by invoking jurisdiction
under Article 226 of the Constitution of
India. In the present case the writ
petition was filed in the year 1987 and
remained pending for 9 long years.
Counter
affidavits
and
rejoinder
affidavits had been exchanged between
the parties. Therefore, after such a long
gap
relegating
respondent
writ
petitioners to raise an industrial dispute
and dismissing the writ petition on the
ground of alternative remedy would not
be just and proper. In this connection
reference may be made to the two
decisions of the Hon'ble Supreme Court
namely Lala Hridaya Narayan Vs. Income
Tax Officer AIR 1971 S.C. page 33 and
Dr. Bal Krishna Agrawal Vs. State of U.P.
and others 1995 A.L.J. 454 which have
been followed by us in the case of
Pradeep Kumar Singh (supra). So far as
the question that the respondent writ
petitioner workmen and can raise an
industrial dispute under the Industrial
Disputes
Act
is
concerned,
all
the
decisions relied upon by Shri V.B. Singh
have been considered by us in the case
of Pradeep Kumar Singh (supra) and it
has been held that alternative remedy is
not a bar where a writ petition has been
filed alleging violation of principle of
natural justice.
Case law discussed:
AIR 1975 SC-2238
AIR 1996 SC-469
J.T. 1998 (8) Sc-204
2002 (92) FLR 1159
1991 (2) UPLBEC- 898 (FB)
1998 (80) FLR-189
1997 (76) FLR-372
1969 (1) LLJ-734
2001 (3) UPLBEC-2571

(Delivered by Hon'ble R.K. Agrawal, J.)

1. The present Special Appeal has
been filed by U.P. State Spinning
Company Ltd., against the judgment and
order dated 27.8.1996 passed by the
learned Single Judge in C.M. Writ
Petition No. 15027 of 1987 whereby the
learned Single Judge had allowed the writ
petition and had quashed the order of
termination
dated
1.12.1987
passed
against the respondent writ petitioner no.
1 and 4.1.1988 passed against the
respondent writ petitioner no. 2.