# Union of India and others v. Hari Nath Yadav & another

- **Citation:** (2008) 1 ILRA 263
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-01-07
- **Case number:** Civil Misc. Writ Petition No. 17571 of 2006
- **Bench:** Dr. B.S. Chauhan, Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/union-of-india-and-others-v-hari-nath-yadav-another-41042
- **Pages:** 6

## Headnote

Constitution of India Art. 226-Service
law-
Regularisation-petitioner/
Respondents worked as an unauthorized
substitute-approached after 13 yearsclaiming
re-engagement
and
regularization-once the status accepted
as unauthorized substitute-can not be
re-engaged
or
regularized-Tribunal
ought to have rejected the application on
ground of laches-even on merit when the
respondents are not in service for a
considerable
period-No
question
of
regularization-wrong concession given
by counsel not binding upon client.

Held: Para 20

A person not in service and further who
has not been appointed under any
procedure prescribed by law, cannot
seek remedy of regularization. In the
instant case, admittedly respondent no.1
had been appointed unauthorizedly and
without following procedure prescribed
by law. Once the learned Tribunal had
reached
the
said
conclusion
that
respondent no.1 was an unauthorized
substitute, no relief could have been
granted to respondent no.1 on merit.
Case law discussed:
1997 (1) SCC 269, (1996) 6 SCC 267, AIR
1997 SC 2366, AIR 1989 SC 674, 2006 (10) JT
500, AIR 1962 SC-554, AIR 1964 SC 377, AIR
1989 SC 662, (1998) 2 SCC 502, AIR 1998 SC
1681 (para 23), (1998) 2 SCC 523, (1999) 6
SCC 464, (2000) 5 SCC 44, (2001), 5 SCC 59
(para 13), AIR 2004 SC 1704, 2006 AIR SCW
2068, AIR 1978 SC 22, AIR 1981 SC 537, AIR
1970 SC 794

## Text

1 All] Union of India and others V. Hari Nath Yadav and another
263
report to the person concerned otherwise
it would amount to take a decision
without disclosing adverse material to the
person concerned.

6. The assessing authority has
declined to supply copy of the report by
his letter dated 15.12.2007 on the ground
that the same is confidential and,
therefore, need not be furnished to the
petitioner particularly when inference
drawn from the said report has already
been noticed in the show cause notice. In
our view the aforesaid decision of the
assessing authority cannot be sustained.
There does not appear any logical reason
to hold the report of the DC SIB to be
confidential
and
accordingly-for
not
supplying the same, if it is proposed by
the department to rely upon that report in
the provisional assessment.

7. It is mentioned in Anncxurc-5 to
the writ petition that the 'substance of the
adverse
inferences'
has
been
communicated to the petitioner. But the
communication of the substance of the
adverse findings in that report may not
always be sufficient. The reason is that
the material adverse to the petitioner in
the report may not have been properly or
completely understood or appreciated in
its proper perspective by the Officer when
it read the report, and what has been
understood by the Officer may not have
been communicated accurately to the
petitioner by that Officer. Language as a
medium for communication of ideas is far
from perfect, and that imperfection
increases indirect communication. The
inadmissibility of hearsay evidence is
based on that concept. Moreover the
context in which the adverse conclusion
finds place in the report may, in some
cases, have great importance. Again the
basis of the adverse conclusion, as
mentioned in the report, would also be
important. Therefore, principles of natural
justice would require a copy of the
original report to be supplied, instead of
supplying indirect information to the
person against whom that report is
proposed to be relied upon.

8. In the circumstances, we dispose
of this writ petition finally directing the
respondents not to proceed with the
provisional assessment unless copy of the
report of DC SIB is supplied to the
petitioner if the department proposes to
rely on any part of that report in the
provisional assessment proceedings. It is
clarified that the supply of the copy of the
report will not be necessary, and the
provisional assessment proceedings may
be continued if the department does not
propose to rely upon that report at all in
the provisional assessment proceedings.
However, in the latter situation the
petitioner will be informed in advance in
writing by the department that the
department will not rely on any part of
that report.

Petition disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.01.2008

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 17571 of 2006

Union of India and others ...Petitioners
Versus
Hari Nath Yadav & another ...Respondents

Counsel for the Petitioners:
Sri V.K. Goel
264 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Counsel for the Respondents:
Sri D.B. Yadav
S.C.

Constitution of India Art. 226-Service
law-
Regularisation-petitioner/
Respondents worked as an unauthorized
substitute-approached after 13 yearsclaiming
re-engagement
and
regularization-once the status accepted
as unauthorized substitute-can not be
re-engaged
or
regularized-Tribunal
ought to have rejected the application on
ground of laches-even on merit when the
respondents are not in service for a
considerable
period-No
question
of
regularization-wrong concession given
by counsel not binding upon client.

Held: Para 20

A person not in service and further who
has not been appointed under any
procedure prescribed by law, cannot
seek remedy of regularization. In the
instant case, admittedly respondent no.1
had been appointed unauthorizedly and
without following procedure prescribed
by law. Once the learned Tribunal had
reached
the
said
conclusion
that
respondent no.1 was an unauthorized
substitute, no relief could have been
granted to respondent no.1 on merit.
Case law discussed:
1997 (1) SCC 269, (1996) 6 SCC 267, AIR
1997 SC 2366, AIR 1989 SC 674, 2006 (10) JT
500, AIR 1962 SC-554, AIR 1964 SC 377, AIR
1989 SC 662, (1998) 2 SCC 502, AIR 1998 SC
1681 (para 23), (1998) 2 SCC 523, (1999) 6
SCC 464, (2000) 5 SCC 44, (2001), 5 SCC 59
(para 13), AIR 2004 SC 1704, 2006 AIR SCW
2068, AIR 1978 SC 22, AIR 1981 SC 537, AIR
1970 SC 794

(Delivered by Hon'ble Dr. B.S. Chauhan. J.)

1. Heard Sri V.K. Goel, learned
counsel for the petitioners and Sri D.B.
Yadav, learned counsel for respondent
no.1.
2. This writ petition has been filed
challenging the judgment and order of the
Central Administrative Tribunal dated
16th January, 2006 rejecting the review
application as well as the judgement and
order dated 21st March, 2005 passed in
Original Application No. 1300 of 2000
filed by respondent no.1, Hari Nath
Yadav, which had been allowed by
issuing a direction for re-engagement and
regularization of his services in Group-D.

3. Facts giving rise to the present
writ petition are that respondent no.1 had
worked as an unauthorised substitute for
certain periods between 1984 to 1987. In
1984, he worked for 40 days, in 1985 and
1986, 75 days and in 1987, 44 days. He
filed Original Application No. 1300 of
2000,
claiming
the
relief
for
reengagement as casual labour from the
date persons junior to him have been reengaged and then to regularize him
against
Group-D
vacancy.
Learned
Central Administrative Tribunal, under
the impugned judgment and order dated
21st March, 2005, has allowed the original
application without considering the issue
of limitation, as the original application
had admittedly been filed after expiry of
13 years of his disengagement and
without considering as to whether he had
been an authorised substitute or had been
appointed after following the procedure
prescribed by law or not. The original
application has been allowed by merely
placing the reliance upon its earlier
judgment and order dated 21st August,
2000 passed in Original Application No.
1193 of 1996; Jamuna vs. Union of India
through
General
Manager,
North
Eastern Railway, Gorakhpur & ors.,
wherein same relief had been granted.
1 All] Union of India and others V. Hari Nath Yadav and another
265
4. Petitioners have earlier filed writ
petition no. 57242 of 2006 challenging
the order dated 21st March, 2005. This
Court vide judgment and order dated 6th
September, 2005 disposed of the writ
petition giving liberty to the petitioners to
file a review application. As it was
contended before this Court that in the
case of Jamuna (Supra) relief had been
granted by the Tribunal on a concession
made by the department illegally, though,
in law such concession could have been
given and that no person had subsequently
been given the same relief, which issue
had not been noticed by the Tribunal.
Present
petitioners
accordingly
filed
review application. However, the learned
Tribunal
dismissed
the
same
vide
judgement and order dated 16th January,
2006. Hence this writ petition.

5. Three things remain undisputed,
(a) that the respondent no.1 had not
worked subsequent to 1987, (b) he
approached the learned Tribunal after
expiry of 13 years, and (c) the learned
Tribunal
has
allowed
the
original
application filed by respondent no.1 only
giving reference to its earlier judgement
and order passed in the case of Jamuna
(Supra) and not on merits. In case, the
respondent no.1 had not been in service
subsequent to 1987, the question of grant
of the relief of regularization would not
be arise or could not be considered by the
learned Tribunal, as it is settled legal
proposition that relief of regularisation
can be claimed by a person, who is
working continuously for a very long
period and is not being made permanent.
In such eventualities, the action of the
employer becomes arbitrary and is hit by
Article 14 of the Constitution of India. A
person not in service can never claim his
re-engagement or regularization, unless
he has first challenged the order of disengagement/termination, as held by the
Apex Court in the case of H.P. Housing
Board vs. Om Pal & ors.;1997 (1) SCC
269 and Ram Chander & ors. vs.
Additional District Magistrate & ors.;
1998 (1) SCC 183.

6. Secondly the issue of limitation
was very relevant to determine the
controversy as no person can claim the
benefit of the judgement rendered by any
Court or Tribunal in favour of a person,
who has prosecuted his case diligently
and approached the appropriate forum
within time.

7. If some person has taken a relief
from the Tribunal by filing a writ petition
immediately after the cause of action had
arisen, others cannot take the benefit
thereof by filing a belated original
application.
Such
negligent
persons
cannot claim similar relief at such a
belated stage for the reason that they
cannot be permitted to take the impetus of
the order passed at the behest of some
diligent person.

8. In State of Karnataka & Ors. Vs.
S.M. Kotrayya & Ors., (1996) 6 SCC 267,
the Hon'ble Supreme Court rejected the
contention that a petition should be
considered ignoring the delay and laches
on the ground that he filed the petition
just after coming to know of the relief
granted by the Court in a similar case as
the same cannot furnish a proper
explanation for delay and laches. The
Court observed that such a plea is wholly
unjustified and cannot furnish any ground
for ignoring delay and laches.

9. Same view has been reiterated by
the Hon'ble Supreme Court in Jagdish Lal
266 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
& Ors. Vs. State of Haryana & Ors., AIR
1997 SC 2366, observing as under:-

"Suffice it to state that appellants
may be sleeping over their rights for long
and elected to wake-up when they had
impetus from Veerpal Chauhan and Ajit
Singh's ratio.... desperate attempts of the
appellants to re-do the seniority, held by
them in various cadre.... are not amenable
to the judicial review at this belated stage.
The High Court, therefore, has rightly
dismissed the writ petition on the ground
of delay as well."

10. In M/s. Roop Diamonds & Ors.
Vs. Union of India & Ors., AIR 1989 SC
674,
the
Hon'ble
Supreme
Court
considered a case where petitioner wanted
to get the relief on the basis of the
judgment of the Supreme Court wherein a
particular law had been declared ultra
vires. The Court rejected the petition on
the ground of delay and latches observing
as under:-

"There is one more ground which
basically sets the present case apart.
Petitioners are re-agitating claims which
they have not persued for several years.
Petitioners were not vigilant but were
content to be dormant and close to sit on
the fence till somebody else's case came
to be decided."

11. Recently the Hon'ble Supreme
Court of India in the case of Chairman
U.P. Jal Nigam & Anr. vs. Jaswant
Singh & anr.; 2006 (10) JT 500, had
refused to grant the similar relief to the
incumbent of Jal Nigam on the ground
that they were not vigilant and had slept
over his rights for considerable period. In
paragraph-13, it was held as follows:

"............ Therefore, whenever it
appears that the claimants lost time or
while away and did not rise to the
occasion in time for filing the writ
petitions, then in such cases, the court
should be very slow in granting the relief
to the incumbent. Secondly, it has also to
be taken into consideration the question
of acquiescence or waiver on the part of
the incumbent whether other parties are
going to be prejudiced if the relief is
granted.... "

12. In such a fact situation, it was
the, duty of the Tribunal to address the
application on the issue of limitation and
it could not have granted the benefit
which had been granted to Jamuna, who
might have challenged the order within
time. Thus, we are of the considered
opinion that the learned Tribunal has
failed to appreciate that the original
application ought to have been dismissed
only on the ground of limitation.

13. So far as the affidavit/
undertaking
given
by
the
present
petitioners in case of Jamuna (Supra) is
concerned, the Court must examine as to
whether
the
undertaking
was
inconsonance in law, as it is settled law
that any judgment or decree, which is not
inconsonance of law is a nullity.

14. It has also consistently been held
that a wrong concession by a counsel on
question of law does not bind the client or
any person as there can be no estopple
against the Statute. (Vide Dr. H.S. Rikhy
& Ors. Vs. The New Delhi Municipal
Committee, AIR 1962 SC-554; Bank of
Bihar Vs. Mahabir Lal & Ors., AIR 1964
SC 377; Union of India & Anr. Vs. K.S.
Subramaninan, AIR 1989 SC 662; Dr.
Ashok Kumar Maheshwari Vs. State of
1 All] Union of India and others V. Hari Nath Yadav and another
267
U.P. & Anr., (1998) 2 SCC 502; Uptron
India Ltd. Vs. Shammi Bhan & Anr., AIR
1998 SC 1681 (para 23); B.S. Bajwa &
Anr. Vs. State of Punjab & Ors., (1998) 2
SCC 523; M.I. Builders Pvt. Ltd. Vs.
Radhey Shyam Sahu & Ors., (1999) 6
SCC 464; Jagdish Lal Vs. Parmanand,
(2000) 5 SCC 44; Laxmibai (Smt.) Vs.
Karnataka State Road Transport Corpn.
Bangalore, (2001), 5 SCC 59 (para 13);
Union of India & Ors. Vs. Mohanlal
Likumal Punjabi & Ors., AIR 2004 SC
1704; and Union of India & Anr. Vs. S.C.
Parashar, 2006 AIR SCW 2068.

15. Any judgment or decree, which
is not inconsonance with the statutory
requirements is void and cannot be
executed. Any compromise contrary to
the statutory rules is void.

16. In Smt. Nai Bahu vs. Lala
Ramnarayan & ors.; AIR 1978 SC 22
specifically para-14, the Hon'ble Supreme
Court has held as follows:

"14. It is true that a decree for
eviction of a tenant cannot be passed
solely on the basis of a compromise
between the parties (see KK Chari v. A.M.
Seshadri (1973) 3 SCR 691 : (AIR 1973
SC 1311)). The Court is to be satisfied
whether a statutory ground for eviction
has been pleaded which the tenant has
admitted
by
the
compromise.
Thus
dispensing with further proof, on account
of the compromise, the court is to be
satisfied about compliance with the
statutory requirement on the totality of
facts of a particular case bearing in mind
the entire circumstances from the stage of
pleadings upto the stage when the
compromise is effected."

17. In Netaji Studios (P) Ltd. vs.
Navrang Studios & anr; AIR 1981 SC
537,
specifically
Paragraph-17,
the
Hon'ble Supreme Court has held as
follows:
"17. The Bombay Rent Act is a
welfare legislation aimed at the definite
social objective of protection of tenants
against harassment by landlords in
various ways. It is a matter of public
policy. The scheme of the Act shows that
the conferment of exclusive jurisdiction
on certain Courts is pursuant to the social
objective at which the legislation aims.
Public policy requires that contracts to
the contrary which nullify the rights
conferred on tenants by the Act cannot be
permitted.
Therefore,
public
policy
requires that parties cannot also be
permitted to contract out of the legislative
mandate which requires certain kind of
disputes to be settled by special Courts
constituted by the Act. It follows that
arbitration agreements between parties
whose rights are regulated by the Bombay
Rent Act cannot be recognized by a Court
of law."

18. In Ferozi Lal Jain vs. Man Mal
& anr.; AIR 1970 SC 794 specifically
paras-6 and 7, the Hon'ble Supreme Court
of India has held as follows:

"6. From the facts mentioned earlier
it is seen that at no stage, the Court was
called upon to apply its mind to the
question whether the alleged subletting is
true or not. Order made by it does not
show that it was satisfied that the
subletting complained of has taken place,
nor is there any other material on record
to show that it was so satisfied. It is clear
from the record that the court had
proceeded solely on the basis of the
compromise arrived at between the
268 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
parties. That being so there can be hardly
any doubt that the court was not
competent to pass the impugned decree.
Hence the decree under execution must be
held to be a nullity."

19. In view of the above, we are of
the considered opinion that if the present
petitioners had not given an undertaking
in-consonance
with
the
statutory
requirement it will not be binding on the
Courts or Tribunal.

20. In view of the Constitution
Bench Judgement in the case of Secretary,
State of Karnataka & ors. vs. Umadevi (3)
& ors.; 2006 (4) SCC 1, relief of
regularization cannot be granted to a
person who has not been appointed in
consonance in accordance with law or
rules.
It
has
been
held
that
any
appointment made in contravention of
Articles 14 and 16 of the Constitution of
India-is void and cannot be given effect
to. A person not in service and further
who has not been appointed under any
procedure prescribed by law, cannot seek
remedy of regularization. In the instant
case, admittedly respondent no.1 had been
appointed unauthorizedly and without
following procedure prescribed by law.
Once the learned Tribunal had reached the
said conclusion that respondent no.1 was
an unauthorized substitute, no relief could
have been granted to respondent no.1 on
merit.

21. Thus in view of the above, the
writ petition succeeds and is allowed and
the impugned order dated 21st March,
2006 and dated 16th January, 2006 passed
by the Central Administrative Tribunal
are hereby quashed. There shall be no
order as to costs.

Petition allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.01.2008

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 59709 of 2007
Connected with
Civil Misc. Writ Petition No. 57894 of 2007

Paras Nath Chaubey

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri V.D. Shukla
Sri Ashok Khare

Counsel for the Respondents:
Sri P.S. Baghel
Sri G.K. Singh
S.C.

U.P. State Universities Act, 1973-Section
49 (e) officiating Principal-Post Graduate
College-senior
most
teacher-without
possessing
minimum
requisite
qualification can not be appointed even
for short terms of 3 month on initial
stage-exemption
from
requisite
qualification can be granted only by the
selection Committee-approval of such
appointment
by
V.C.-immaterial
consequential direction issued.

Held: Para 23

From the impugned order of the ViceChancellor
of
the
University,
it
is
apparently clear that there are no
reasons recorded qua the issue of
prescribed
minimum
qualification
or
relaxation thereto in favour of Paras
Nath Chaubey. The Vice-Chancellor of
the University has misdirect himself in
recording that for a period of three
months Paras Nath Chaubey can be
permitted to continue as Officiating