# Triloki Nath Dwivedi and others v. District Judge, Basti

- **Citation:** (2004) 1 ILRA 166
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-04-09
- **Case number:** Civil Misc. Writ Petition No. 7867 of 2000
- **Bench:** R.B. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/triloki-nath-dwivedi-and-others-v-district-judge-basti-40314
- **Pages:** 9

## Headnote

Constitution of India Article 226-U.P.
regularisation of Adhoc appointment (on
the post) outside the preview of public
service
Commission
Rules
1979Petitioners appointed on class III post as
adhoc employee prior to 1991, the
minimum qualifications for consideration
in view of amendment 2001 as indicated
in circular letter No. 18 dated 8.5.2002petitioner held entitled for regularisation
against existing vacancies.

Held: Para 19

In view of the above observations it is
clear that the appointment should be
made at initial stage in accordance with
rules.
Incumbent
must
possess
the
requisite qualification for the post on the
date of appointment and if appointment
had been made on temporary ad hoc
basis, the workman should be permitted
to continue for long rather the vacancies
should be filled up on permanent basis in
accordance with law. If the statutory
provision
or
executive
instruction
provides
for
regularisation
after
completing a particular period only then
regularisation is permissible. In special
circumstances, Court may give direction
to consider the case for regularisation
provided continuation on ad hoc basis is
so long that it amounts to arbitrariness
and
provisions
of
Article
14
are
attracted. There must be sanctioned post
against which regularisation is sought.
At the same time policy of the State
enforcing the reservation for particular
classes like S.C., S.T., O.B.C etc. and
further for women, handicapped and exservice men cannot be ignored.
Case law:
1991 (1) SCC 28
1993 (6) JT 593
1988 (1) SCR 335
1996 (10) SCC 656
1997 (1) JT 243
AIR 1996 SC 417
1996 (9) SCC 217
AIR 1991 SC 101

## Text

166 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.04.2004

BEFORE
THE HON'BLE R.B. MISRA, J.

Civil Misc. Writ Petition No. 7867 of 2000

Triloki Nath Dwivedi and others

...Petitioner
Versus
District Judge, Basti
 ...Respondents

Counsel for the Petitioners:
Sri Ravi Kant
Sri S.N. Singh
Sri Shashi Nandan
Sri J.P. Mishra

Counsel for the Respondent:
Sri K.R. Sirohi
Sri Sudhir Agrawal

Constitution of India Article 226-U.P.
regularisation of Adhoc appointment (on
the post) outside the preview of public
service
Commission
Rules
1979Petitioners appointed on class III post as
adhoc employee prior to 1991, the
minimum qualifications for consideration
in view of amendment 2001 as indicated
in circular letter No. 18 dated 8.5.2002petitioner held entitled for regularisation
against existing vacancies.

Held: Para 19

In view of the above observations it is
clear that the appointment should be
made at initial stage in accordance with
rules.
Incumbent
must
possess
the
requisite qualification for the post on the
date of appointment and if appointment
had been made on temporary ad hoc
basis, the workman should be permitted
to continue for long rather the vacancies
should be filled up on permanent basis in
accordance with law. If the statutory
provision
or
executive
instruction
provides
for
regularisation
after
completing a particular period only then
regularisation is permissible. In special
circumstances, Court may give direction
to consider the case for regularisation
provided continuation on ad hoc basis is
so long that it amounts to arbitrariness
and
provisions
of
Article
14
are
attracted. There must be sanctioned post
against which regularisation is sought.
At the same time policy of the State
enforcing the reservation for particular
classes like S.C., S.T., O.B.C etc. and
further for women, handicapped and exservice men cannot be ignored.
Case law:
1991 (1) SCC 28
1993 (6) JT 593
1988 (1) SCR 335
1996 (10) SCC 656
1997 (1) JT 243
AIR 1996 SC 417
1996 (9) SCC 217
AIR 1991 SC 101

(Delivered by Hon'ble R.B. Misra, J.)

Heard Sri S. N. Singh, learned
counsel for the petitioners and Sri K.R.
Sirohi learned counsel for the Judgeship
of Basti, respondent.

1. In this petition prayer has been
made for quashing the advertisement
dated 5.2.2000 issued by the respondent
for recruitment to the class III posts of
ministerial cadre with further prayer for
issuance of mandamus commanding the
respondent to treat the petitioners as
regular in service on the posts held by
them
and
for
payment
of
salary
admissible to the regular employees.

2. The brief facts necessary for
adjudication of the writ petition are (i) the
petitioners no. 1 and 2 namely Triloki
Nath
Dwivedi
and
Santosh
Kumar
Srivastava were appointed on 19.2.1991
and 1.4.1991 respectively in District
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1 All] Triloki Nath Dwivedi and others V. District Judge, Basti 167
Judgeship of Mirzapur as paid apprentice
on ad-hoc basis @ of Rs. 900/- per month
and were subsequently transferred to
judgeship of Basti and joined there on
20.9.1994 and 13.9.1994 respectively,
since then they are working as class III
employees and are being paid salary as a
regular employees; (ii) Petitioner no. 3 Sri
Ajai Kumar Rai was initially appointed as
Stenographer
(Hindi)
in
Gorakhpur
Judgeship
on
5.2.1991
and
was
transferred to Judgeship of Basti and had
joined in Judgeship of Basti on 23.9.1994
and since then he is continuously
working; (iii) Petitioner no. 4 Sri Govind
Saran Lal and petitioner no. 5 Sri Anuj
Kumar were initially appointed on fixed
pay of Rs. 950/- per month as Copyist on
9.1.1991 and 3.9.1990 respectively and
are
working
on
the
same
post
continuously without any break; (iv)
Petitioner no. 6 Sri Sanjay Kumar Sonkar
was initially appointed on ad hoc basis on
the post of paid apprentice in Lucknow
Judgeship
on
17.12.1990
and
was
subsequently transferred to Judgeship of
Basti on 12.9.1994 and since then he is
regularly working there.

3. According to the petitioners they
were appointed in accordance to Rule 269
of General Rules (Civil) which empowers
the District Judge to make appointment in
emergency. Rule 269 is reproduced as
below:

"269. District Judge to be informed
when work increases for Copyists - If, in
any court, copying work increases so
much that the existing staff of copyists
cannot cope with it, the head copyists
shall at once report to the District Judge,
in the case of the court of the District
Judge through the Munsarim of that
court, and in the case of any other court,
through the presiding officer of the court.
The
District
Judge
shall
ascertain
whether any increase of establishment is
necessary;
and
if
an
increase
be
necessary in his opinion, he shall report
the matter for the orders of the High
Court. In urgent cases, the District Judge
may employ extra copyists and report to
the High Court."

4. According to the petitioners they
were appointed by proper selection
committee by respective District Judges
prior to June, 1991 and at the time of their
initial appointment as adhoc they were in
possession of required qualifications for
appointment to the class III posts,
therefore,
they
are
entitled
to
be
considered
and
treated/appointed
as
regular employee to the existing class III
posts in reference to U.P. Regularisation
of Ad hoc Appointment (on the post
outside the purview of Public Service
Commission) Rules, 1979 in short called
"Rules, 1979" as amended from time to
time and in view of the 'Rules, 2001'
which came into effect on 20th December,
2001 i.e. Uttar Pradesh Regularisation of
Ad-hoc Appointments (on posts outside
the purview of the Public Service
Commission) (Third Amendment) Rules,
2001. The relevant provisions are given as
below :

1.(1) These Rules may be called the
Uttar Pradesh Regularisation of Ad-hoc
Appointment
(On
posts
outside
the
Purview
of
the
Public
Service
Commission) (Third Amendment) Rules,
2001.

 (2) They shall come into force at
once.

2.
In
the
Uttar
Pradesh
Regularisation of Ad-hoc Appointments
(On posts outside the Purview of the
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168 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
Public Service commission Rules, 1979 in
rule 4 for existing sub rule (1) set out in
column 1 below, the sub-rule as set out in
column 2 shall be substituted, namely :-

"COLUMN-1

 Existing Sub- rule
(i) Any person who-
(i) was directly appointed on adhoc basis before January 1, 1977 and is
continuing in service as such on the date
of commencement of these rules;
(ii) possessed
requisite
qualifications prescribed for regular
appointment as the time of such ad-hoc
appointment, and
(iii) has completed or, as the case
may be, after he has completed three
years service shall be considered for
regular appointment in permanent or
temporary vacancy, as may be available,
on the basis of his record and suitability
before any regular appointment is made
in such vacancy in accordance with the
relevant rules or orders.

COLUMN-2

 Sub-rule as hereby substituted
(i) Any person who-
(i) was directly appointed on adhoc basis on or before June 30, 1998 and
is continuing in service as such on the
date of commencement of the Uttar
Pradesh
Regularisation
of
Ad-hoc
Appointments (on posts outside the
purview
of
the
Public
Service
Commission) (Third Amendment) Rules,
2001:
(ii) Possessed
requisite
qualifications prescribed for regular
appointment as the time of such adhoc
appointment: and

(iii) Has completed or, as the case
may be, after he has completed three
years service shall be considered for
regular appointment in permanent or
temporary vacancy, as may be available,
on the basis of his record and suitability
before any regular appointment is made
in such vacancy in accordance with the
relevant rules or orders."

5. According to the petitioners, the
earlier 'Rules 1979' was amended by
"Rules 2001" and was promulgated for
the employees of State of Uttar Pradesh
and the same has been adopted by this
High Court as indicated in Circular No.
18/ VII b/104/Admin.(D) dated 8.5.2002.
When initially this writ petition was filed,
the selections to the Class III employees
was stayed by an interim order dated
9.5.2000 of this Court.

6. After the exchange of counter and
rejoinder affidavits, it was revealed that
large number of posts to the class III in
the judgeship of Basti is still in existence,
however the counter affidavit which
preferred in February, 2000 has indicated
the difficulty of judgeship of Basti to
consider the case of the petitioners for
regularisation in absence of any specific
rules of regularisation. In absence of any
prevailing rules of regularisation the
District Judge, Basti was not able to
regularise or treat the petitioners as
regular
employee.
Subsequently
this
Court inquired about the applicability of
'Rules 2001' in the judgeship and High
Court and it was fairly indicated on the
part of Sri K.R. Sirohi learned counsel
appearing for the judgeship of Basti that
'Rules, 2001' has already been adopted by
this Court in the year 2002 as indicated
above. This Court was pleased to pass an
order on 17.9.2003 which reads as
below:-

"Heard Sri Sudhir Agrawal, learned
counsel for District Judge Basti. None
appears on behalf of the petitioners.
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1 All] Triloki Nath Dwivedi and others V. District Judge, Basti 169

An advertisement dated 2.2.2000,
was made by District Judge Basti for
recruitment to the class III post in the
judgeship of Basti. However, the selection
to the class III post was stayed by an
interim order dated 9.5.2000, passed by
this court. Counter affidavit/rejoinder
affidavit
have
been
filed.
The
six
petitioners/claimants
prayed
for
regularization
and
their
right
of
regularization is yet to be adjudicated
upon. In this consideration keeping in
view the requirement of judgeship of Basti
and its functioning the interim order
dated 9.5.2000, is modified to the extent
that a fresh advertisement shall be
published by the district Judge Basti for
recruitment to the class III post in the
Judgeship of Basti and a selection process
may be conducted/made in accordance
with the rules and law. Six post of class
III, for which the petitioners are claiming,
shall
not
be
included
in
that
advertisement till fresh/further order of
this court. If the petitioners' claim is
found to be justified and the petitioners
are given relief in their favour after
finalization of the writ petition otherwise
against these posts also fresh regular
recruitment may be made by the District
Judge. The interim order dated 9.5.2000,
in respect of the petitioners and six posts
is effective upto 21st October 2003, or till
any further modification. The liberty is
given to the petitioners also to appear in
the examination and selection for the
recruitment of class III post in the regular
post.

List on 21st October, 2003, as a part
heard matter before me."

7. At the time of argument it was
brought to the notice of this Court that a
temporary ban has been imposed by the
Chief Justice of this High Court on the
administrative
side
for
appointment,
promotion to the class IV and class III
posts in all the judgeship of districts of
State
of
Uttar
Pradesh,
in
these
circumstances, the District Judges have
stopped making any recruitment/selection,
however such ban of Chief Justice on
administrative side has no relevance, and
binding effect in the matters being
adjudicated
before
this
Court
and
impediment for obeying a judicial verdict
of this Court, if any, as such the
apprehension of parties are discarded.

8. The issue of regularisation has
been considered by the Supreme Court
from time and again and the law has been
laid down in very clear terms in the cases,
i.e. State of Haryana and others Vs. Piara
Singh and others (Supra); Jacob M.
Puthuparambil and others Vs. Kerala
Water Authority and others, 1991 (1)
SCC 28 ; J & K Public Service
Commission etc. Vs. Dr. Narinder Mohan
and others, 1993 (6) JT 593; Dr. A. K.
Jain Vs. Union of India, 1988 (1) SCR
335; E.K. Ramakrishnan and others Vs.
State of Kerala and others, 1996 (10)
SCC 656; and Ashwani Kumar and others
Vs. State of Bihar and others, 1997 (1) JT
243; and the ratio of all those judgments
can be summarized to the extent that the
question as to whether the services of
certain employees appointed on ad hoc
basis should be regularised relates to the
condition of service. The power to
prescribe the conditions of service can be
exercised either by making Rules under
the proviso to Article 309 of the
Constitution of India or any analogous
provision and in the absence of such
Rules, under the instructions issued in
exercise of its executive power. The Court
comes into the picture only to ensure
observance of fundamental rights and
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170 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
statutory provisions, Rules and other
instructions,
if
any,
governing
the
conditions of service. The main concern
of the Court in such matters is to ensure
the Rules of Law and to see that the
executive acts fairly and gives a fair deal
to its employee consistent with the
requirements of Articles 14 and 16. It also
means that the State should not exploit its
employees nor should it seek to take
advantage of the helplessness and misery
of either the unemployed persons or the
employees, as the case may be. As is
often said, the State must be a model
employer. It is for this reason, it is held
that equal pay must be given for equal
work, which is indeed one of the
Directive Principles of the Constitution. It
is for this very reason it is held that a
person should not be kept in a temporary
or ad hoc status for long. A perusal of the
authorities would show that appointments
are as a rule to be made in accordance
with
statutory
rules,
giving
equal
opportunity to all the aspirants to apply
for the posts and following the prevalent
policy of reservation in favour of
Scheduled Castes/Scheduled Tribes and
other backward classes. Whenever the
employees are appointed on ad hoc basis
to meet an emergent situation, every
effort should be made to replace them by
the employees appointed on regular basis
in accordance with the relevant rules as
expeditiously as possible. Where the
appointment
on
ad
hoc
basis
has
continued for long and the State has made
rules for regularisation, regularisation has
to be considered in accordance with the
rules. Where, however, no rules are
operative, it is open to the employees to
show that they have been dealt with
arbitrarily and their weak position has
been exploited by keeping them on ad hoc
for long spell of time. However, it is a
question of fact whether in the given
situation, they were treated arbitrarily.

9. In Khagesh Kumar Vs. Inspector
General of Registration, U.P. and others,
AIR 1996 SC 417, the Supreme Court did
not issue direction for regularisation of
those employees who had been appointed
on ad hoc basis or on daily wages after
the cut off date, i.e. 1.10.1986 as was
mandatory required by the provisions of
U.P.
Regularisation
of
Ad
hoc
Appointment (On posts outside the
Purview
of
the
Public
Service
Commission) Rules, 1979 and those who
were not eligible under the said Rules
were not given regularisation. The same
view has been taken by the Supreme
Court in Inspector General of Registration
and another Vs. Awadhesh Kumar and
others, 1996 (9) SCC 217. Moreover, the
above referred cases further laid down
that for the purpose of regularisation,
various pre-requisite conditions are to be
fulfilled, i.e. the temporary/ ad hoc
appointment of the employee should be in
consonance with the statutory rules, it
should not be a back-door entry. The
service record of the petitioner should be
satisfactory, the employee should be
eligible and/or qualified for the post at the
time of his initial appointment. There
must be a sanctioned post against which
the employee seeks regularisation and on
the said sanctioned post, there must be a
vacancy. Moreover, regularisation is to be
made according to seniority of the
temporary/ ad hoc employees. The
regularisation
should
not
be
in
contravention
of
the
State
Policy
regarding
reservation
in
favour
of
Scheduled Castes/ Scheduled tribes and
other
backward
classes
and
other
categories for which State has enacted any
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1 All] Triloki Nath Dwivedi and others V. District Judge, Basti 171
Act or framed rules or issued any
Government Order etc..

10. Similar view has been taken in
Union of India Vs. Vishamber Dutt, 1996
(11) SCC 341: and State of Uttar Pradesh
Vs. U.P. Madhyamik Parishad Kshrimik
Sangh, AIR 1996 SC 708. In the case of
State of Himachal Pradesh Vs. Ashwani
Kumar, 1996 (1) SCC 773, the Apex
Court has held that if an employment is
under a
particular
Scheme
or
the
employee is being paid out of the funds of
a Scheme, in case the Scheme comes to
closure or the funds are not available, the
Court has no right to issue direction to
regularise the service of such an employee
or to continue him on some other project,
for the reason that "no vested right is
created in a temporary employment."

11. The Court deprecates the
practice of making appointments on daily
wages without advertising the vacancy or
calling the names from Employment
Exchange in derogation to the provisions
of Articles 14 and 16 of the Constitution
and violative of the fundamental rights of
other eligible persons of open market.

12. The question of appointment
dehors the Rules has been considered by
the Supreme Court from time and again
and the Court held that such appointments
are unenforceable and in executable. It is
settled
legal
proposition
that
any
appointment made dehors the Rules
violates the Public Policy enshrined in the
rules and, thus, being void, cannot be
enforced. (Vide Smt. Ravinder Sharma
and another Vs. State of Punjab and
others, (1995) 1 SCC 138; Smt. Harpal
Kaur
Chahal
Vs.
Director,
Punjab
Instructions, 1995 (Suppl) 4 SCC 706;
State of Madhya Pradesh Vs. Shyama
Pardhi, (1996) 7 SCC 118; State of
Rajasthan Vs. Hitendra Kumar Bhatt,
(1997) 6 SCC 574; Patna University Vs.
Dr. Amita Tiwari, AIR 1997 SC 3456;
Madhya Pradesh Electricity Board Vs.
S.S. Modh and others, AIR 1997 SC
3464; Bhagwan Singh Vs. State of Punjab
and others, (1999) 9 SCC 573; and
Chancellor Vs. Shankar Rao and others,
(1999) 6 SCC 255).

13. Appointment dehors the Rules
violates the mandate of the provisions of
Articles 14 and 16 of the Constitution as
held by the Hon'ble Supreme Court in
Delhi
Development
Horticulture
Employees'
Union
Vs.
Delhi
Administration, AIR 1992 Sc 789; and
State of Haryana and others Vs. Piara
Singh, AIR 1992 SC 2130. In Delhi
Transport
Corporation
Vs.
D.T.C.
Mazdoor Congress and others, AIR 1991
SC 101, the Supreme Court recognised
the public employment as public property
and held that all persons similarly situated
have a right to share in it though its
enjoyment is subject to the recruitment
rules which must be in consonance with
the Scheme of the Constitution of India.

14. In Dr. M.A. Haque and others
Vs. Union of India and others, (1993) 2
SCC 213, the Supreme Court observed as
under :

"........We cannot lose sight of the
fact that the recruitment rules made under
Article 309 of the Constitution have to be
followed strictly and not in breach. If a
disregard of the rules and by passing of
the Public Service Commissions are
permitted, it will open a back-door for
illegal recruitment without limit. In fact
this Court has, of late, been witnessing a
constant violation of the recruitment rules
and a scant respect for the constitutional
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172 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
provisions requiring recruitment to the
services through the Public Service
Commissions. It appears that since this
Court has in some cases permitted
regularisation of the irregularly recruited
employees,
some
governments
and
authorities
have
been
increasingly
resorted to irregular recruitments. The
result had been that the recruitment rules
and the Public Service Commissions have
been kept in cold storage and candidate
dictated by various considerations are
being recruited as a matter of course."

15. Deprecating the practice of
making appointment dehors the Rules by
the State or other State instrumentalities
in Dr. Arundhati A. Pargaonkar Vs. State
of Maharashtra, AIR 1995 SC 962, the
Court rejected the claim of the petitioner
therein for regularisation on the ground of
long continuous service observing as
under :

"Nor the claim of the appellant, that
she having worked as Lecturer without
break for 9 years' on the date the
advertisement was issued, she should be
deemed to have been regularised appears
to be well founded. Eligibility and
continuous working for howsoever long
period should not be permitted to overreach the law. Requirement of rules of
selection.....cannot be substituted
by
humane considerations. Law must take its
course."

16. The Supreme Court in State of
U.P. and others Vs. U.P. State Law
Officers Association and others, AIR
1994 SC 1654 has observed as under :

"This being so those who come to be
appointed by such arbitrary procedure
can hardly complain if the termination of
their appointment is equally arbitrary.
Those who come by the backdoor have to
go by the same door..... The fact that they
are made by public bodies cannot vest
them with additional sanctity. Every
appointment made to a public office,
howsoever made, is not. There is,
therefore, no public interest involved in
saving all appointments irrespective of
their mode. From the inception some
engagements and contracts may be the
product of the operation of the spoils
system. There need be no legal anxiety to
save them."

17. Even if there are no Statutory
Rules or
Bye-laws
of
the
society
providing a mode for appointment, the
Executive Instructions/Policy adopted by
the respondent-society must be there
providing for a mode of appointment.
Even
if
no
such
Executive
Instructions/Policy/Guidelines/Circular
etc. is in existence then a fair procedure
for appointment has to be adopted in
consonance
with
the
provisions
of
Articles 14 and 16 of the Constitution.
(Vide Nagpur Improvement Trust Vs.
Yadaorao Jagannath Kumbhare, (1999) 8
SCC 99.

18. A Constitution Bench of the
Supreme Court, in B.R. Kapoor Vs. State
of Tamil Nadu, (2001) 7 SCC 231
(Jayalalitha case) has observed that it is
the duty of the Court to examine whether
the incumbent possesses qualification for
appointment and the manner in which the
appointment came to be made or the
procedure adopted was fair, just and
reasonable and if not, appointment should
be struck down.

19.

In
view
of
the
above
observations
it
is
clear
that
the
appointment should be made at initial
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1 All] Triloki Nath Dwivedi and others V. District Judge, Basti 173
stage in accordance with rules. Incumbent
must possess the requisite qualification
for the post on the date of appointment
and if appointment had been made on
temporary ad hoc basis, the workman
should be permitted to continue for long
rather the vacancies should be filled up on
permanent basis in accordance with law.
If the statutory provision or executive
instruction provides for regularisation
after completing a particular period only
then regularisation is permissible. In
special circumstances, Court may give
direction to consider the case for
regularisation provided continuation on ad
hoc basis is so long that it amounts to
arbitrariness and provisions of Article 14
are attracted. There must be sanctioned
post against which regularisation is
sought. At the same time policy of the
State
enforcing
the
reservation
for
particular classes like S.C., S.T., O.B.C
etc. and further for women, handicapped
and ex-service men cannot be ignored.

20. I have heard learned counsel for
the parties and perused the contents of the
counter affidavit, rejoinder affidavit and
supplementary
affidavit.
Undisputedly
large number of vacancies are available
for recruitment in the class III/ministerial
cadre in the judgeship of Basti and the
petitioners were working continuously to
the class III posts as ad-hoc employees
prior to June, 1991 and were in possession
of the minimum qualification for the
recruitment
to
the
class
III
posts/ministerial cadre. Since they were
appointed as ad-hoc employees, their
cases are to be considered in view of the
"Rules, 2001" as adopted by this Court as
indicated in Circular Letter no. 18 dated
8.5.2002. Therefore, the petitioners are
entitled for regular appointment out of the
existing vacancies. No petitioner shall be
ignored by virtue of his age on the date of
consideration for regularisation if such
person was fulfilling age criteria at the
initial stage of his appointment on adhoc
basis. The cases of petitioners are to be
considered forthwith and District Judge,
Basti is at liberty to proceed for
recruitment and selection to the class III
category of posts in judgeship of Basti in
view of the interim order dated 17.9.2003
of this Court in reference to the
advertisement dated 2.2.2000. It is left to
the wisdom and discretion of District
Judge, Basti to issue a corrigendum in
sequence to earlier advertisement dated
2.2.2000
to
incorporate
upto-date
vacancies and allow fresh applications
from the open market and may consider
the
earlier
applicants
and
their
applications and fees irrespective of their
present age, provided such applicants
intended to participate in selection of
2.2.2000 were within specified age limit.
The inter-se seniority of petitioners after
being awarded regular status in reference
to the newly selected candidates to class
III may be resolved in accordance to the
prevailing rules and laws. This Court had
earlier been pleased to direct by an
interim order dated 17.9.2003 directing
the District Judge, Basti to proceed for the
selection to the class III posts, if
necessary by issuing fresh advertisement
in sequence to the earlier advertisement
dated 2.2.2000 and before that petitioners
are to be considered against the six
regular existing vacancies and the order of
regularisation
are
to
be
issued
in
consonance
to
the
'Rules,
2001'
accordingly.

In view of the above observations,
the writ petition is allowed. However no
order as to cost.
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174 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 5.4.2004

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 13034 of 2003

Shobh Nath and another ...Petitioners
Versus
District Manager, Food Corporation of
India Varanasi, U.P. and others

 ...Respondents

Counsel for the Petitioners:
Sri R.C. Gupta

Counsel for the Respondents:
Sri M.P. Singh
Sri N.P. Singh
Sri V.K. Agarwal

Constitution
of
India,
Article
226-
Appointment on compassionate groundsone of the family member who seeks
voluntary retirement on medical ground
or before attaining the age 55 years-in
view of circular dated 3.7.96 application
filed with in time-delay caused in
forwarding the application can not be a
ground for regretting the application for
appointment.

Held: Para 8

Thus, in my view, the reason for refusing
to give appointment to the petitioner, as
stated in the impugned order dated
14.6.2002 passed by respondent No. 2 is
not tenable. The application of the
petitioner No. 2 had been filed within
time as he had not attained the age of 55
years on 17.3.1998 when he first applied
for voluntary retirement on medical
grounds and as such the impugned order
rejecting the application on the ground
of it being filed beyond the age of 55
years is liable to be quashed. The
petitioner No. 1 is entitled to the benefit
of
the
circular
dated
3.7.1996
for
appointment
as
handling
labour on
compassionate grounds in place of his
father, petitioner No. 2. As such this writ
petition deserves to be allowed.
Case law discussed:
AIR 1997 SC 123
AIR 1996 SC 2226
AIR 1994 SC 2148

(Delivered by Hon'ble Vineet Saran, J.)

1. The petitioner is aggrieved by the
order dated 14.6.2002 passed by Senior
Regional Manager, Food Corporation of
India,
Lucknow,
Respondent
no.2,
whereby the application of Petitioner no.2
Jai Ram for appointment of his son Shobh
Nath, Petitioner no.1, has been rejected.
The petitioners have thus prayed for
quashing of the aforesaid order dated
14.6.2002 and also for a direction to the
Senior
Regional
Manager,
Food
Corporation
of
India,
Lucknow,
Respondent no.2, to appoint the Petitioner
no.1 on the post of Handling Labour
(Loader) in accordance with the terms of
the Circular dated 3.7.1996 issued by the
Food Corporation of India.

2. Having heard Sri R.C. Gupta,
learned counsel for the petitioners as well
as Sri M.P. Singh, learned counsel
appearing for the respondents and on
careful
perusal
of
the
record
and
considering the facts and circumstances of
this case, in my view, this writ petition
deserves to be allowed.

3. The brief facts relevant for the
decision of this case are that Petitioner
no.2 Jai Ram was working as Handling
Labour (Loader) with Food Corporation
of India. On 17.3.1998, before attaining
the age of 55 years, he filed an application
for appointment of his son Shobh Nath,
Petitioner no.1, in his place on the basis of
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