# Vikas Kumar & others v. State of U.P. & others - **Citation:** (2012) 1 ILRA 32 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2012-01-11 - **Bench:** Sudhir Agarwal - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vikas-kumar-others-v-state-of-u-p-others-42126 - **Pages:** 2 ## Headnote Code of Criminal Procedure-Section125(3)-Recovery Warrant-for arrears of unpaid maintenance amount-husband inspite of having capacity failed to deposit-order passed by Magistrate perfectly justified-warrant no interference. ## Text 32 INDIAN LAW REPORTS ALLAHABAD SERIES [2012 11. In view of what has been discussed above, there appears no need to pass any fresh orders. I have already held that when a petition is restored to its original number, it gets the status which was being enjoyed by it on the date it was dismissed. Accordingly, I hold that the interim orders I passed in the writ petitions are continuing today. The stay is not time bound hence, there is no need to extend it for any specified time. 12. List after two weeks for final hearing. --------- ORIGINAL JURISDICITION CIVIL SIDE DATED: ALLAHABAD 11.01.2012 BEFORE THE HON'BLE SUDHIR AGARWAL,J. Civil Misc. Writ Petition NO. 1629 of 2012 Vikas Kumar & others ...Petitioners Versus State of U.P. & others ...Respondents Counsel for the Petitioner: Sri Aditya Kumar Yadav Sri Mrityunjay Dwivedi Counsel for the Respondents: C.S.C. Sri Ramendra Pratap Singh Constitution of India, Article 14, 16Regularization-Daily wagers appointment made without following procedure-long time working can not be ground for regularization. Held: Para 6 The Apex Court consistently since then has held that in absence of any statutory provision if a person has been engaged in a wholly illegal manner without following procedure prescribed in statute and in violation of Article 16 of the Constitution, such person cannot be allowed to be regularised as that would amount to commanding the respondents to commit a patent illegality which is unconstitutional also. Case law discussed: (2006) 4 SCC 1; (2007) 1 SCC 575; (2008) 3 SCC 505; (2009) 4 SCC 342; (2010) 2 SCC 422; (2010) 4 SCC 179; 2011 (2) SCC 429 (Delivered by Hon'ble Sudhir Agarwal,J.) 1. Heard learned counsel for the petitioners and perused the record. 2. Petitioners are challenging the advertisement dated 08.12.2011 (Annexure13 to the writ petition) published by New Okhla Industrial Development Authority (hereinafter referred to as "NOIDA"), respondent no. 3 for making recruitment on various Class III and IV posts. 3. Learned counsel for the petitioners contended that petitioners are working for a long time and, therefore, are entitled to be considered for regularisation and so long as they are not considered for regularisation, the post on which they are working, no recruitment by advertisement of vacancies can be made. 4. Learned counsel for the petitioners, however, could not dispute that none of petitioners were ever engaged by respondent-authority by following procedure prescribed in statute consistent with Article 16 of the Constitution of India, i.e., by advertisement of vacancy giving opportunity of consideration to all other eligible persons. The petitioners in a wholly illegal manner without following any procedure of selection were engaged abruptly by officials of NOIDA in a whimsical manner and they have been 1 All] Manoj Kumar Gupta V. Smt. Kamlesh Kumari and anothers 33 allowed to continue obviously with cooperation of authorities who did not admittedly follow prescribed procedure in law for making recruitment. Such appointments are in the teeth of Article 16 of the Constitution particularly when the authority is "State" under Article 12 of the Constitution. Considering such types of appointments the Constitution Bench of Apex Court in Secretary, State of Karnataka Vs. Uma Devi (2006) 4 SCC 1 held: "The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularization or permanent continuance unless the recruitment itself was made regularly and in terms of the Constitutional Scheme." 5. Subsequently in some matters the observations made by Apex Court in para 53 of the judgment of Uma Devi (supra) were sought to be construed as if the persons even if their engagement made without following procedure prescribed in statute but continued for some times are entitled for regularisation but this misconstruction was clarified by Apex Court in subsequent decisions, some of which are, State of M.P. And others Vs. Lalit Kumar Verma (2007) 1 SCC 575; Rajasthan Krishi Vishva Vidyalaya, Bikaner Vs. Devi Singh, (2008) 3 SCC 505; State of Karnataka Vs. G.V. Chandrashekhar (2009) 4 SCC 342; Harminder Kaur and others Vs. Union of India and others (2009) 13 SCC 90; Union of India & another Vs. Kartick Chandra Mondal & another (2010) 2 SCC 422; Satya Prakash & others Vs. State of Bihar & others (2010) 4 SCC 179; and, State of Rajasthan and others Vs. Daya Lal & others, 2011(2) SCC 429. 6. The Apex Court consistently since then has held that in absence of any statutory provision if a person has been engaged in a wholly illegal manner without following procedure prescribed in statute and in violation of Article 16 of the Constitution, such person cannot be allowed to be regularised as that would amount to commanding the respondents to commit a patent illegality which is unconstitutional also. 7. In the circumstances, I do not find any right of petitioners to claim regularisation and the process adopted by respondents for filling up the vacancies by advertisement cannot be faulted legally or otherwise. 8. Dismissed. --------- REVISIONAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 17.01.2012 BEFORE THE HON'BLE SURENDRA KUMAR,J. Criminal Revision No. 1712 of 1993 Manoj Kumar Gupta ...Petitioner Versus Smt. Kamlesh Kumari and another ...Respondents Counsel for the Petitioner: Sri R.C. Gupta Counsel for the Respondent: A.G.A. Code of Criminal Procedure-Section125(3)-Recovery Warrant-for arrears of unpaid maintenance amount-husband inspite of having capacity failed to deposit-order passed by Magistrate perfectly justified-warrant no interference.