# With other connected cases Om Prakash & Ors v. State of U.P. & Ors

- **Citation:** (2025) 1 ILRA 288
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-30
- **Case number:** Writ A No. 17904 of 2020
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/with-other-connected-cases-om-prakash-ors-v-state-of-u-p-ors-54883
- **Pages:** 11

## Headnote

Civil Law - Uttar Pradesh Water Supply
and Sewerage Act, 1975 - Sections 8 & 89
- Constitution of India, 1950 - Article 226 -
Salary, family pension - Retrospective
regularization
-
Petitioners
initially
appointed on daily wages basis in Nigam -
By Government order dated 12.04.2011
they were regularized with immediate
effect - Later on, Nigam passed order
dated 26.04.2011 regularized petitioners
w.e.f Government order - Nigam on its
own accord indicated for purpose of pay
fixation, petitioners would be entitled for
counting of their service after five years of
continuous
service
of
their
initial
appointment
i.e
w.e.f
01.04.1991
to
01.04.1995, no arrears admissible for
aforesaid period till 11.04.2011 - Nigam
order was contrary to Government order,
various letters including letter dated
12.02.2020
were
written
seeking
clarification. (Para 23, 25)

St. Government by impugned order dated
18.08.2020 declared all regularizations
done w.e.f 01.04.1991 to 01.04.1995
wrong and cancelled, any payment/pay
fixation, increments, time scale of pay etc.
given are erroneous and pay fixation
modified by regularized w.e.f 26.04.2011,
direction for recovery of excess amount
paid, department action against guilty
officials and petitioners entitled for New
Pension Scheme w.e.f 01.04.2005 - Nigam
withdrawn benefits pertaining to pay
fixation. (Para 26, 27)

Held,
when
Government
decided
to
regularize with immediate effect, Nigam
bound by said directions and could not
proceed beyond order and granted any
1 All. Om Prakash & Ors. Vs. State of U.P. & Ors.
289
benefits retrospectively - No vested right
accrued to petitioners to claim benefit, no
error committed by St. Government and
Nigam. (Para 34)
By not challenging Government order,
petitioners
themselves
believed
regularization with prospective effect and
not
retrospective
effect
-
Thus,
respondents are restraining from recovery
of pension, excess amount on account of
fixation or gratuity from petitioners who
retired prior to issuance of impugned
orders. (Para 41, 45, 47)

Writ petition partly allowed. (E-13)

List of Cases cited:

## Text

288 INDIAN LAW REPORTS ALLAHABAD SERIES
dealt as Public Interest Litigation for
ensuring the 9149 courts operational.

13. Hon'ble Supreme Court has
already laid down that, in case of a
situation, in which, issue of public interest
is involved, the same may be referred to the
Bench dealing with PIL matters. Reference
may be made to Para 10 of the decision of
Hon'ble Apex Court in the case on State of
Uttar Pradesh & Ors. Vs. Neeraj
Chaubey & Ors., (2010) 10 SCC 320,
which reads as under :

"10. In case an application is filed
and the Bench comes to the conclusion that
it involves some issues relating to Public
Interest, the Bench may not entertain it as a
Public Interest Litigation but the court has
its option to convert it into a public interest
litigation and ask the Registry to place it
before a Bench which has jurisdiction to
entertain the PIL as per the Rules,
guidelines or by the roster fixed by the
Chief Justice but the Bench cannot convert
itself into a PIL and proceed with the
matter itself."

14. In view of above facts and
circumstances, this Court is of the view that
the issue related to creation of 9149 courts
is related to interest of public at large and,
therefore, the Registry is directed to
register the PIL as a separate case and place
it before Hon'ble the Chief Justice for
appropriate direction.
---------
(2025) 1 ILRA 288
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.01.2025
BEFORE
THE HON'BLE ABDUL MOIN, J.

Writ A No. 17904 of 2020
With other connected cases
Om Prakash & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sanjay Kumar Srivastava, Akshat Kumar,
Jitendra Singh

Counsel for the Respondent:
C.S.C., Puneet Singh, Rishabh Kapoor

Civil Law - Uttar Pradesh Water Supply
and Sewerage Act, 1975 - Sections 8 & 89
- Constitution of India, 1950 - Article 226 -
Salary, family pension - Retrospective
regularization
-
Petitioners
initially
appointed on daily wages basis in Nigam -
By Government order dated 12.04.2011
they were regularized with immediate
effect - Later on, Nigam passed order
dated 26.04.2011 regularized petitioners
w.e.f Government order - Nigam on its
own accord indicated for purpose of pay
fixation, petitioners would be entitled for
counting of their service after five years of
continuous
service
of
their
initial
appointment
i.e
w.e.f
01.04.1991
to
01.04.1995, no arrears admissible for
aforesaid period till 11.04.2011 - Nigam
order was contrary to Government order,
various letters including letter dated
12.02.2020
were
written
seeking
clarification. (Para 23, 25)

St. Government by impugned order dated
18.08.2020 declared all regularizations
done w.e.f 01.04.1991 to 01.04.1995
wrong and cancelled, any payment/pay
fixation, increments, time scale of pay etc.
given are erroneous and pay fixation
modified by regularized w.e.f 26.04.2011,
direction for recovery of excess amount
paid, department action against guilty
officials and petitioners entitled for New
Pension Scheme w.e.f 01.04.2005 - Nigam
withdrawn benefits pertaining to pay
fixation. (Para 26, 27)

Held,
when
Government
decided
to
regularize with immediate effect, Nigam
bound by said directions and could not
proceed beyond order and granted any
1 All. Om Prakash & Ors. Vs. State of U.P. & Ors.
289
benefits retrospectively - No vested right
accrued to petitioners to claim benefit, no
error committed by St. Government and
Nigam. (Para 34)
By not challenging Government order,
petitioners
themselves
believed
regularization with prospective effect and
not
retrospective
effect
-
Thus,
respondents are restraining from recovery
of pension, excess amount on account of
fixation or gratuity from petitioners who
retired prior to issuance of impugned
orders. (Para 41, 45, 47)

Writ petition partly allowed. (E-13)

List of Cases cited:

1. St. Of Punjab & ors. Vs Rafiq Masih (White
Washer), (2015) 4 SCC 334, (Para 12)

2.
S.L.Kapoor
Vs
Jagmohan
&
ors.,
MANU/SC/0036/1980, (Para 17)

3. Aligarh Muslim University Vs Mansoor Ali
Khan, MANU/SC/0533/2000

4. Central Council for Research in Ayurvedic
Sciences & anr. Vs Bikartan Das & ors., (2023)
SCC OnLine SC 996, (Para 51)

(Delivered by Hon'ble Abdul Moin, J.)

1. Heard Shri Sanjay Kumar Srivastava,
Shri Jitendra Singh and Ms. Savita Jain,
learned counsels for the petitioners, learned
Standing Counsel for the State respondents,
Shri Rishabh Kapoor, Shri Madhav Om,
Advocate holding brief of Shri Samir Om and
Shri Ankit Singh, learned counsels appearing
on behalf of the Jal Nigam.

2. Learned counsels appearing on behalf
of the contesting parties contend that the issue
involved in all the aforesaid writ petitions is
same. As such, the Court proceeds to hear
and decide all the writ petitions together by a
common order. For the sake of convenience,
the facts of WRIT - A No. - 17904 of 2020
are being taken into consideration.

3. Instant writ petition (WRIT - A No. -
17904 of 2020) has been filed praying for the
following main reliefs:-

"(I) Issue a writ, order or direction
in the nature of certiorari quashing the
impugned orders dated 18.08.2020 passed by
the Opposite Parties No. 1 & 2 contained as
Annexure No. 1 to the writ petition.

(II) Issue a writ, order or direction
in the nature of certiorari quashing the
impugned orders dated 20.08.2020 passed by
the Opposite Party No. 4 contained as
Annexure No. 2 to the writ petition.

(III) Issue writ, order or direction
in the nature of mandamus commanding the
Opposite Parties not to give effect of the
impugned orders dated 18.08.2020 and
20.08.2020 passed by the Opposite Parties
No. 1, 2 & 4 contained as Annexure No. 1, 2
& 4 to the writ petition.

(IV) Issue writ, order or direction
in the nature of mandamus commanding the
Opposite Parties to continue to make
payment of salary and other service benefits
regularly every month including future postretiral dues and pension as and when it
becomes due ignoring the imugned orders to
the petitioners No. 1 to 227 and 2870.

(V) Issue writ, order or direction in
the nature of mandamus commanding the
Opposite Parties to continue to make paymet
of pension/family pension along will all other
post-retiral dues as and when it becomes due
to the petitioners no. 2272 to 2869 ignoring
the impugned orders."

4. As per the learned counsels
appearing on behalf of the contesting
parties, the petitioners of the instant writ
petition and other connected writ petitions
290 INDIAN LAW REPORTS ALLAHABAD SERIES
can be divided into three categories
namely:-

(A) the petitioners who have
retired prior to passing of the impugned
orders dated 18.08.2020 & 20.08.2020 and
have received their retiral dues and are in
receipt of pension.

(B) the petitioners who have
retired from service on attaining the age of
superannuation during pendency of the
instant writ petition and

(C) the petitioners who are in
service.

5. Bereft of unnecessary details, the
facts of the case are that all the petitioners,
were initially appointed on daily wages
basis/muster roll/work charge basis in the
Uttar Pradesh Jal Nigam (In short "Nigam")
and were continuing to work in the same
capacity
when
in
pursuance
to
the
Government order dated 12.04.2011, a
copy of which is annexure 15 to the writ
petition, which directed for regularization
of the services of the persons like the
petitioners with immediate effect, were
regularized vide order dated 26.04.2011
issued by the Nigam, a copy of which is
annexure 16 to the writ petition. In
pursuance to the order dated 26.04.2011,
the pay of the petitioners were fixed w.e.f
completion of five years of continuous
service after their appointment as specified
in paragraph 6 of the order dated
26.04.2011 but were not granted any
arrears on account of the said fixation up to
11.04.2011.

6. It is contended by the learned
counsel appearing on behalf of the
contesting parties that at the time of filing
of the writ petitions, the Nigam was one
unit but subsequent thereto, it has been
bifurcated into Uttar Pradesh Jal Nigam
Urban and Uttar Pradesh Jal Nigam Rural.
However, it is stated by the learned counsel
for the contesting parties that the said
bifurcation would not make any difference
to the orders impugned.

7. Subsequent to the said orders and
prior to passing of the orders impugned
dated 18.08.2020 & 20.08.2020, various
petitioners retired and received gratuity and
other retiral dues and are in receipt of
pension
on
the
basis
of
the
said
regularization orders which were passed
with retrospective efffect.

8. It is contended that the subsequent
to the order dated 26.04.2011, a letter dated
12.02.2020, copy of which is annexure 17
to the writ petition was sent by the Nigam
to
the
State
Government
seeking
clarification as to whether those persons
who have been regularized w.e.f a previous
date, whether they should be given the
service benefits/retiral benefits on the basis
of the regularization with retrospective
effect
or
by
treating
the
date
of
regularization
as
12.04.2011.
Various
letters were also earlier sent by the Nigam
in this regard to the State Government.

9. The State Government thereafter
issued
the
order
impugned
dated
18.08.2020,a copy of which is annexure 1
to the writ petition directing that (a)
regularization
orders
w.e.f.04.1991/01.04.1992/.01.04.1993/01.0
4.1994/01.04.1995
are
erroneous
and
should be cancelled (b) the benefits which
have
been
given
with
effect
from
01.04.1991/01.04.1992/.01.04.1993/01.04.1
994/01.04.1995 upto 26.04.2011 i.e annual
increments, time scale of pay, ACP etc
have erroneously been granted and the
same should be rectified by considering the
date of regularization as 26.04.2011 and the
1 All. Om Prakash & Ors. Vs. State of U.P. & Ors.
291
excess amount paid should be recovered
and action should be taken against the
guilty officials and (c) as the regularization
had to be done with immediate effect i.e in
terms of the order dated 26.04.2011 and
new pension scheme having come into
force w.e.f 01.04.2005 as such, none of the
persons would be entitled for the benefit of
the old pension scheme.

10.
In
pursuance
thereof,
the
consequential
order
impugned
dated
20.08.2020, a copy of which is annexure 2
to the writ petition was passed by Nigam
reiterating the order dated 18.08.2020 and
taking away the service benefits accrued to
the
petitioners
on
account
of
the
regularization prior to 26.04.2011, treating
the
petitioners
as
regularized
w.e.f
26.04.2011 and for treating such regular
person as covered by New Pension
Scheme.

11. Being aggrieved by the orders
impugned dated 18.08.2020 & 20.08.2020,
the instant writ petition has been filed.

12. The grounds taken by the learned
counsel for the petitioners seeking to
challenge
the
order
impugned
dated
18.08.2020 are that as vested rights have
accrued to the petitioners on account of the
retrospective regularization in terms of the
order dated 26.04.2011 that had been
issued by the Nigam and which was
cancelled
without
affording
any
opportunity of hearing consequently, the
said order is in gross violation of the rules
of natural justice and as such, merits to be
quashed on this ground alone.

13. Another ground which has been
taken by the learned counsels for the
petitioners is that the petitioners have
already received the higher pay and other
attendant benefits on account of the order
dated 26.0.2011 and they being Class-IV
employees as such, keeping in view the law
laid down by the Apex Court in the case of
State Of Punjab & Ors vs Rafiq Masih
(White Washer)- (2015) 4 SCC 334, the
said monetary benefits cannot be recovered
from them..

14. Yet another ground which has
been taken by the learned counsel for the
petitioners is that once a large number of
petitioners had retired prior to passing of
the impugned orders dated 18.08.2020 &
20.08.2020 and have also received the
pension
and
other
retiral
benefits
consequently, the same cannot be taken
away retrospectively by means of the
orders impugned.

15. Responding, Sri Rishabh Kapoor,
Sri Samir Om and Sri Ankit Singh, learned
counsels appearing on behalf of the
contesting
parties
have
argued
that
admittedly all the petitioners were working
on daily wages basis/muster roll/work
charge basis in the Nigam. An order dated
12.04.2011 was issued by the State
Government for regularizing persons like
the petitioners with immediate effect. By
means of the said Government order, posts
were also created on which the eligible
persons were to be regularized.

16. In pursuance thereof, the Nigam
passed an order dated 26.04.2011 whereby
the services of the petitioners were
regularized with effect from the issuance of
the Government order dated 12.04.2011.
For the purpose of their pay fixation alone,
it was provided that they would be entitled
for benefits at par with those persons who
had been regularized previously after
completion of five years of continuance in
service with effect from the date of their
292 INDIAN LAW REPORTS ALLAHABAD SERIES
appointment but no arrears for the said
period up to 11.04.2011 would be payable.
Thus, by means of the order dated
26.04.2011, the pay fixation of the
petitioners was also done.

17. It is contended that when the fault
of fixation of pay and other benefits
retrospectively was discovered, the State
Government issued the Government order
dated 18.08.2020 by which the fault
committed by the Nigam was indicated and
it was directed to cancel the regularizations
which have been made w.e.f 01.04.1991,
01.04.1992, 01.04.1993, 01.04.1994 &
01.04.1995; to recover the benefits of
annual increment, time scale of pay etc.
which was erroneously granted on the basis
of
treating
the
regularization
with
retrospective
effect
and
that
the
regularization of the persons should only be
treated w.e.f 26.04.2011 and consequently,
the said persons would only be entitled for
the benefit of the new pension scheme. On
the basis of the same, the Nigam also
issued
the
order
impugned
dated
20.08.2020.

18. The argument of Sri Kapoor is that
when
the
Government
order
dated
12.04.2011
itself
indicated
that
the
regularization was to be made with
immediate effect and in pursuance thereof,
the
Nigam
issued
the
order
dated
26.04.2011 categorically specifying that the
regularization of the petitioners was being
done with effect from the date of issuance
of
the
Government
order
dated
12.04.2011 consequently, any benefit of
pay fixation etc. which has been given with
retrospective effect erroneously to the
petitioners is clearly impermissible in the
eyes of law.

19. Further argument is that the
petitioners have not challenged either the
Government
order
dated
12.04.2011
wherein the services of the petitioners were
directed to be regularized with immediate
effect as well as the order dated 26.04.2011
passed by the Nigam which has regularized
their services w.e.f 12.04.2011 and thus
having acquiesced to the said orders, they
cannot be permitted to challenge the orders
impugned.

20. The other argument of Sri Kapoor
is that considering Section 89 read with
Section 8 of the Uttar Pradesh Water
Supply
and
Sewerage
Act,
1975
(hereinafter referred to as "Act, 1975"), the
Nigam is guided by directions on question
of policy as may be given to it by the State
Government
and
further
even
the
appointment of the petitioners, as has been
done in the instant case, would be governed
by Section 8 of the Act, 1975 which
categorically provides that the appointment
of the employees has to be done as per the
general or special order determining the
terms and conditions with the approval of
the State Government.

21. Sri Kapoor also argues that
considering the fact that the Government
order had only directed for regularization
of
the
petitioners
w.e.f
12.04.2011
consequently, any benefit which has been
given to the petitioners erroneously and
on
account
of
an
erroneous
interpretation of the Government order
dated 12.04.2011 by the Nigam as finds
place in paragraph 6 of the order dated
26.04.2011 as issued by the Nigam would
not vest any right to the petitioners, the
same being erroneous and against the
provisions of the Act, 1975.
1 All. Om Prakash & Ors. Vs. State of U.P. & Ors.
293

22. Heard learned counsel appearing
on behalf of the contesting parties and
perused the records.

23. From the arguments as raised by
the learned counsel appearing on behalf of
the contesting parties and perusal of
records it emerges that the petitioners were
initially
appointed
on
daily
wages
basis/muster roll/work charge basis in the
Nigam and were continuing to work in the
same capacity. The Government order
dated 12.04.2011 was issued directing for
regularization of the services of the persons
like the petitioners with immediate effect.
For the purpose of the regularization,
various posts were also created. In
pursuance thereof, the Nigam passed the
order dated 26.04.2011 regularizing the
petitioners in service w.e.f the date of
issuance of the said Government order i.e
12.04.2011. However, in paragraph 6 of the
order
dated
26.04.2011,
despite
the
Government order dated 12.04.2011 not
providing so, the Nigam on its own accord
indicated that only for the purpose of pay
fixation, the petitioners would be entitled
for counting of their service after five years
of continuous service of their initial
appointment
i.e
w.e.f
01.04.1991,
01.04.1992, 01.04.1993, 01.04.1994 &
01.04.1995. It was also provided that the
pay fixation of the petitioners would be
done but no arrears would be admissible to
them
for
the
aforesaid
period
till
11.04.2011.

24. In pursuance thereof, the pay
fixation of the petitioners were done.

25. When the fault was discovered by
the Nigam of having passed an order which
was contrary to the Government order
dated 12.04.2011 which had only directed
for regularization of the petitioners with
immediate effect from the date of the
issuance of the aforesaid Government order
consequently, the Nigam sent various
letters including a letter dated 12.02.2020
seeking a clarification as to whether the
benefits that have been given to the
petitioners by treating their regularization
with retrospective effect, can be said to be
valid or that the petitioners would be
entitled for the benefits w.e.f the date of
their regularization i.e 12.04.2011.

26. The same has resulted into the
Government order/impugned order dated
18.08.2020 being passed by the State
Government
directing
that
all
the
regularizations that have been done w.e.f
01.04.1991,
01.04.1992,
01.04.1993,
01.04.1994 & 01.04.1995 are wrong and
should be cancelled; any payment/pay
fixation, increments, time scale of pay etc.
which has been given w.e.f the aforesaid
dates of 1991 to 1995 are erroneous and the
said pay fixation should be modified by
treating the persons regularized w.e.f
26.04.2011 and that the excess amount paid
to the persons be recovered and an
appropriate department action be taken
against the guilty officials and that as the
petitioners have been regularized vide order
dated 26.04.2011 consequently, they would
be entitled only for the New Pension
Scheme which has come into force w.e.f
01.04.2005.

27. In pursuance thereof, the Nigam
passed
the
order
impugned
dated
20.08.2020 reiterating the said order and
withdrawing the benefits that had been
given to the petitioners pertaining to pay
fixation etc and hence the petitions.

28. Various grounds have been taken
by the learned counsel for the petitioners
for challenging the orders impugned dated
294 INDIAN LAW REPORTS ALLAHABAD SERIES
18.08.2020 & 20.08.2020 including the
ground that the vested rights which accrued
to the petitioners prior to passing of the
orders impugned could not be withdrawn;
no opportunity of hearing having been
accorded to the petitioners prior to passing
of the orders impugned and keeping in
view the law laid down by the Apex Court
in the case of Rafiq Masih (White
Washer) (supra) no recovery can be made
from the petitioners for the excess amount
that has been received by them as they are
all Class-IV employees.

29. The aforesaid grounds though
attractive on the face of record are found to
be patently misconceived.

30. The reason is that a perusal of the
order dated 12.04.2011 as passed by the
State Government itself indicates that the
petitioners were to be regularized with
immediate effect. The Nigam on its own
accord and erroneously interpreting the
order dated 12.04.2011 regularized the
petitioners with retrospective effect and
also granted them pay fixation which could
not have validly been done considering the
provisions of Section 8 and 89 of the Act,
1975 which read as under:-

"8. Appointment of employees.

(1) Subject to the provision of
sub-section (2), the Nigam may appoint
such employees as it considers necessary
on such terms and conditions as it thinks fit
for the efficient performance of its
functions:Provided that the appointment of
such employees as the State Government
may, by general or special order specify,
shall be made in their terms and conditions
shall be determined with the approval of
the State Government.

2) The Nigam may, with the
previous approval of the State Government,
appoint
a
servant
of
the
Central
Government or the State Government as an
employee of the Nigam on such terms and
conditions as it thinks fit.

89. Directions to the Nigam on
questions of policy.

(1)In
the
discharge
of
its
functions, the Nigam shall be guided by
such directions on questions of policy as
may be given to it by the State Government.

(2)If any question arises whether
any matter is or is not a matter as respects
which the State Government may issue a
direction
under
sub-section
(1),
the
decision of the State Government shall be
final."

31. A perusal of Section 8 of the Act,
1975 indicates that the Nigam may
appoint such employees as it considers
necessary. The proviso to sub Section (1)
of Section 8 of the Act, 1975 provides
that the appointment of such employees
as the State Government may, by a
general or special order order specify,
shall be made on the terms and conditions
as determined with the approval of the
State Government.

32. Likewise, Section 89 of the Act,
1975 categorically provides that in the
discharge of its functions, the Nigam shall
be guided by such directions on questions
of policy, as given to it by the State
Government.

33. When Sections 8 & 89 of the Act,
1975 are read, they clearly provide that the
appointments of the employees and the
terms and conditions are to be determined
with the approval of the State Government
and that in the discharge of its function, the
Nigam shall be guided by the directions on
question of policy as given by the State
Government.
1 All. Om Prakash & Ors. Vs. State of U.P. & Ors.
295

34. When the State Government took a
conscious decision of regularizing the
persons working in the Nigam and their
regularization was only with immediate
effect
vide
order
dated
12.04.2011
consequently, the Nigam was bound by the
directions that had been issued by the State
Government and could not have proceeded
beyond
the
said
order
i.e
beyond
regularizing
the
employees
like
the
petitioners with effect from the date of the
Government order dated 12.04.2011 and
could not have granted any benefits
retrospectively including the benefits of
pay fixation etc. Thus, in case the Nigam
on its own accord gave certain benefits
to the petitioners which were erroneous
and beyond the Government order dated
12.04.2011 consequently, considering
the provisions of the Act, 1975 and the
Government order dated 12.04.2011, no
vested right accrued to the petitioners to
claim benefit of the same and thus no
error has been committed by the State
Government
and
the
Nigam
while
passing
the
orders
impugned
of
withdrawing
the
benefits
as
had
erroneously been given to the petitioners
by
treating
their
regularization
retrospectively.

35. So far as the ground that no
opportunity of hearing had been accorded
to the petitioners prior to passing of the
orders impugned, it is settled proposition of
law that natural justice is not an empty
formality and in case only one view is
possible then there would not be any
requirement of giving an opportunity of
hearing.

36. The Court has itself considered as
to whether any other view was possible to
be taken in the matter and as to whether in
case any opportunity would have been
accorded to the petitioners, could a
different view be possible ?

37. Considering the provisions of the
Act, 1975 and the Government order dated
12.04.2011 it is apparent that it is the
Nigam which has erred in passing an order
of retrospective regularization and there
being no other view consequently, even if
an opportunity of hearing had been given to
the petitioners, the same per se would not
have resulted in any other orders than what
have been passed by the respondents.

38. In this regard, the Court may refer
to the judgment of the Apex Court in the
case of S.L.Kapoor Vs. Jagmohan and
ors-MANU/SC/0036/1980
wherein
the
Apex Court has held as under:-

"17. Linked with this question is
the question whether the failure to observe
natural justice does at all matter if the
observance of natural justice would have
made no difference, the admitted or
indisputable facts speaking for themselves.
Where on the admitted or indisputable
facts only one conclusion is possible and
under the law only one penalty is
permissible, the Court may not issue its
writ to compel the observance of natural
justice, not because it approves the
nonobservance of natural justice but
because Courts do not issue futile writs.
But it will be a pernicious principle to
apply in other situations where conclusions
are controversial, however, slightly, and
penalties are discretionary."
(emphasized by the Court)

39. The said judgment has also been
considered subsequently by the Apex Court
in the case of Aligarh Muslim University
Vs.
Mansoor
Ali
Khan-
MANU/SC/0533/2000.
296 INDIAN LAW REPORTS ALLAHABAD SERIES

40. As regards, the ground that the
petitioners had acquired a vested right to
get pension and other retiral dues on the
basis of their regularization that was made
retrospectively, the said ground may also
not detain the Court inasmuch as there
cannot be any vested rights against law.
Once the Government order itself provided
for grant of benefits with immediate effect
and the Nigam erred in granting the benefit
with retrospective effect as such, the same
cannot give any vested rights to the
petitioners to claim any benefit on account
of their wrong retrospective regularization.
Thus, the said ground is also rejected.

41. A relevant aspect of the matter is
that the petitioners have acquiesced to the
Government order dated 12.04.2011 which
provided for regularization with immediate
effect. The said order has not been
challenged in the instant writ petition
meaning thereby that the petitioners are
themselves
of
the
view
that
the
regularization, as per Government order
dated 12.04.2011 could only have been
given with prospective effect and not
retrospective effect as has wrongly been
done by the Nigam. The said act of not
challenging the Government order dated
12.04.2011 would bind the petitioners as
well as the Nigam more particularly
considering Sections 8 & 89 of the Act,
1975.

42. Having considered the merits of
the matter, now the Court proceeds to see
as to whether any benefits can be given to
the three sets of employees who are before
this Court namely (A) the petitioners who
have retired prior to passing of the
impugned orders dated 18.08.2020 &
20.08.2020 and have received their retiral
dues and are in receipt of pension (B) the
petitioners who have retired from service
on attaining the age of superannuation
during pendency of the instant writ petition
and (C) the petitioners who are in service.

43. With regard to the employees in
category (A) i.e the petitioners who have
retired prior to passing of the impugned
orders dated 18.08.2020 & 20.08.2020 and
have received their retiral dues and are in
receipt of pension, as the said petitioners
have received pension, gratuity and other
benefits even prior to passing of the orders
impugned consequently, this Court while
exercising extra ordinary jurisdiction under
Article 226 of the Constitution of India
finds that it would be inequitable that the
benefits that have already been given to
them should be withdrawn.

44. In this regard, it would be apt to
refer of the judgment of the Apex Court in
the case of Central Council for Research
in Ayurvedic Sciences and Anr Vs.
Bikartan Das and ors- (2023) SCC
OnLine SC 996 wherein the Apex Court
has held as under:-

"51.
The
second
cardinal
principle of exercise of extraordinary
jurisdiction under Article 226 of the
Constitution is that in a given case, even if
some action or order challenged in the
writ petition is found to be illegal and
invalid, the High Court while exercising its
extraordinary jurisdiction thereunder can
refuse to upset it with a view to doing
substantial justice between the parties.
Article 226 of the Constitution grants an
extraordinary remedy, which is essentially
discretionary, although founded on legal
injury. It is perfectly open for the writ
court, exercising this flexible power to pass
such orders as public interest dictates &
equity projects. The legal formulations
cannot be enforced divorced from the
1 All. Om Prakash & Ors. Vs. State of U.P. & Ors.
297
realities of the fact situation of the case.
While administering law, it is to be
tempered with equity and if the equitable
situation demands after setting right the
legal formulations, not to take it to the
logical end, the High Court would be
failing in its duty if it does not notice
equitable consideration and mould the final
order in exercise of its extraordinary
jurisdiction. Any other approach would
render the High Court a normal court of
appeal which it is not."

45. Consequently, exercising the
jurisdiction
under
Article
226
of
Constitution of India, the Court restrains
the respondents from making any recovery
of either pension or gratuity or other
benefits that have been given to such
petitioners in category (A) i.e those who
have retired prior to issuance of the
impugned orders dated 18.04.2020 &
20.04.2020 meaning thereby that the said
petitioners would continue to draw the
pension and other retirement benefits which
they were drawing at the time of their
retirement with all consequential benefits.
This direction would only cover the
employees in category of (A) as indicated
above.

46. So far as the employees in
categories (B) & (C) are concerned i.e
(B) the petitioners who have retired from
service
on
attaining
the
age
of
superannuation during pendency of the
instant writ petition and (C) the petitioners
who are in service, the principle of law as
laid down by the Apex Court in the case of
Rafiq Masih (White Washer) (supra)
would be attracted wherein the Apex Court
has held as under:-

"12. It is not possible to postulate all
situations of hardship, which would govern
employees on the issue of recovery, where
payments have mistakenly been made by the
employer, in excess of their entitlement. Be that
as it may, based on the decisions referred to
herein above, we may, as a ready reference,
summarise the following few situations,
wherein recoveries by the employers, would be
impermissible in law:

(i)
Recovery
from
employees
belonging to Class-III and Class-IV service (or
Group 'C' and Group 'D' service).

(ii) Recovery from retired employees,
or employees who are due to retire within one
year, of the order of recovery.

(iii) Recovery from employees, when
the excess payment has been made for a period
in excess of five years, before the order of
recovery is issued.

(iv) Recovery in cases where an
employee has wrongfully been required to
discharge duties of a higher post, and has been
paid accordingly, even though he should have
rightfully been required to work against an
inferior post.

(v) In any other case, where the
Court arrives at the conclusion, that recovery if
made from the employee, would be iniquitous
or harsh or arbitrary to such an extent, as
would far outweigh the equitable balance of the
employer's right to recover."

47. From a perusal of aforesaid judgment,
it emerges that recovery from the employees
belonging to Class-III & IV service or Group C
& D service is clearly impermissible in the eyes
of law. Thus, the recovery of excess amount on
account of fixation which has been given to the
petitioners of categories (B) & (C) shall not
be recovered.

48. Keeping in view the aforesaid
discussion, the writ petition is partly
allowed. The orders impugned dated
18.08.2020 & 20.08.2020, copies of which
298 INDIAN LAW REPORTS ALLAHABAD SERIES
are annexures 1 & 2 to the writ petition
respectively so far as they direct for
recovery of the excess amount from the
petitioners in categories (B) & (C) are
quashed.

49. Consequences to follow.

44.
The
Court
records
the
assistance of Mr. Mohd. Azam Siddiqui,
Research Associate of this Court.
----------
(2025) 1 ILRA 298
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.01.2025

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ A No. 23739 of 2021
With
Writ A No. 22141 of 2021

Anand Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ghaus Beg

Counsel for the Respondents:
C.S.C., Namit Sharma, Shailendra Singh
Chauhan

Service Law-The Uttar Pradesh Public
Service
Commission,
Rules,
2016---
Petitioner initially appointed on contract basis in
the Nagar Nigam in the year 1998. The
Government order dated 23.07.2012 was issued
for terminating the services of the employees
engaged
in
an
irregular
manner/contract/temporary
basis---In
the
meanwhile the Rules, 2016 had been issued for
regularization and the petitioner being found
eligible for regularization, was regularized vide
order dated 23.06.2021--- Persons who are
continuing even after the date of promulgation
of the Rules i.e 12.09.2016, a right stood
crystallized in such contractual employees to be
considered for regularization of their service on
the basis of the Rules, 2016. Admittedly, the
petitioner was continuing in service on the date
of promulgation of the Rules i.e 12.09.2016 and
thus he was correctly regularized vide order
dated 23.06.2021---Once the petitioner already
stood regularized there was no occasion for a
Government order dated 28.07.2021 to be
issued indicating that the regularization was
subject to decision of the special appeal, so far
as it pertains to the petitioner and for that
matter for the consequential impugned order
dated 26.08.2021 to be issued by the Nagar
Nigam cancelling the regularization order of the
petitioner---So far as the ground that no post is
now lying vacant on which the petitioner can
continue as urged by the respondents, the said
ground is found to be patently misconceived
inasmuch as the regularization order of the
petitioner dated 23.06.2021 itself indicates that
the petitioner has been regularized against a
vacant post of Lighter/Porter in the pay scale of
Rs.5200-20200 and thus if at this stretch of
time, no post is lying vacant, the same will not
effect the case of the petitioner---Impugned
orders quashed--- Petition allowed. (Para 33
& 37) (E-15)

List of Cases cited:

1.Writ Petition No. 6755 (S/S) of 2012 in re:
Vinay Kumar Shukla & ors. Vs St. of U.P. & ors.

2. Writ petition No. 4334 (S/S) of 2012 in re:
Neeraj Babu Vs St. of U.P. & ors.

3. Special Appeal (Defective) No. 96 of 2018 in
re: Umesh Chandra Yadav Vs St. of U.P. & ors.

4. Writ Petition No. 18342 (S/S) of 2020 in re:
Ajay Bajpai & Ors. Vs St. of U.P. & ors.

5. Writ Petition No.2983 (S/S) of 2020 in re:
Irfan Affas & ors. Vs St. of U.P. & ors..

6. Special Appeal (Defective) No. 284 of 2021 in
re: Shiv Kumar & ors. Vs St. of U.P. & ors.

7. Special Leave Petition (Civil) Diary No. 18904
of 2023 in re: Nagar Ayukta Lucknow Nagar