# Yogendra Singh Indolia & Ors v. State of U.P. & Ors

- **Citation:** Writ-A No. 2193 of 2020
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-10
- **Case number:** Writ-A No. 2193 of 2020
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yogendra-singh-indolia-ors-v-state-of-u-p-ors-46282
- **Pages:** 11

## Headnote

A. Service Law - Rule of absorption in
service - regular employment is the
general
rule
-
exception
to
such
employment is litigious employment - it
cannot be claimed as a matter of right -
970 INDIAN LAW REPORTS ALLAHABAD SERIES
once a person has knowingly exercised
the option for their absorption in public
employment, they cannot turn round and
claim the benefits of Old Pension Scheme
which
stood
abolished
before
their
appointment

When the petitioners claim to have been
appointed, Old Pension Scheme was not in
existence. It was abolished in March 2005,
whereas the petitioners have been appointed by
absorption in the months of September or
October 2007. The basis of their appointments
is the provision of Section 21 E of the U.P.
Secondary Education (Services Selection Boards)
Act, 1982 which was inserted by U.P. Act of 37
of 2006 published in the gazette on 11.12.2006.
Therefore, the Old Pension Scheme which
already stood abolished in March 2005 was
neither available to the petitioner on the date of
their appointments nor the petitioners are
entitled for benefit under the said scheme.

B. Doctrine of Election - Rule of Estoppel -
where one knowingly accepts the benefits
of a contract or conveyance or an order,
he is estopped to deny the validity or
binding effect on him of such contract or
conveyance or order

Writ Petition rejected. .(E-10)

List of cases cited:

## Text

3-5 All. Yogendra Singh Indolia & Ors.Vs. State of U.P. & Ors.
969
used in Article 21 has a wide and for
reaching concept. It means something more
than mere animal existence and the
inhibition against the deprivation of life
extends to all those limits and localities by
which life is enjoyed. Right to marry person
of ones choice, has been accepted as
integral part of Article 21 of Constitution a
per the judgment of Apex Court, in the case
of Lala Singh Vs. State of U.P. One cannot
be
denied
of
companionship,
as
companionship is one of the faculties by
which life can be enjoyed, and merely
because compassionate appointment ha
been provided, a person cannot be forced
to
sign
affidavit
sacrificing
his/her
fundamental
right,
that
in
future
remarriage will not at all be contracted .
The employer has in effect misused his
dominant status of employer by asking for
such an affidavit. This Court also in the
case of Smt. Subhwanti Devi Vs. Shiksha
Adhikshak 1988 U.P.L.B.E.C. 80 (DB) has
taken the view, that remarriage may be a
social or a biological human necessity, but
same can never be made for termination of
service, and remarriage has not at all been
defined
as
one
of
the
misconduct,
disqualifications or disabilities. "

13. In Special Leave to Appeal (C)
No.16315
of
2017
(Smt.
Premlata
Acharya vs. Suman Acharya and others),
decided on 28.07.2017, Hon'ble Supreme
Court considered similar controversy in the
matter of payment of family pension while
considering the provisions of the Rajasthan
Compassionate
Appointment
of
Dependants
of
Deceased
Government
Servants Rule, 1996 and observed that the
family pension should continue to be paid
to the grandfather of the children for the
benefit of the children as per the Rules and
50% of the salary of the widow who
remarried leaving her children with the
maternal grandfather of the children,
should continue to be paid for the children
until the last of them attains the age of 25
years.

14. For all the reasons afore-stated,
the writ petition is disposed off making it
open to the petitioner that she is free to
contract her remarriage. She shall give an
undertaking in the form of an affidavit
before the respondent Nos.2 and 3 that she
shall pay one third of her salary to her
mother-in-law every month, after she
contracts the remarriage and shall continue
to pay it to her mother-in-law till her
(mother-in-law) life time.

15. With the aforesaid observations,
the writ petition is disposed off.
----------
(2020)03-05ILR A969
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.02.2020

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Writ-A No. 2193 of 2020

Yogendra Singh Indolia & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Anurag Shukla

Counsel for the Respondents:
C.S.C.

A. Service Law - Rule of absorption in
service - regular employment is the
general
rule
-
exception
to
such
employment is litigious employment - it
cannot be claimed as a matter of right -
970 INDIAN LAW REPORTS ALLAHABAD SERIES
once a person has knowingly exercised
the option for their absorption in public
employment, they cannot turn round and
claim the benefits of Old Pension Scheme
which
stood
abolished
before
their
appointment

When the petitioners claim to have been
appointed, Old Pension Scheme was not in
existence. It was abolished in March 2005,
whereas the petitioners have been appointed by
absorption in the months of September or
October 2007. The basis of their appointments
is the provision of Section 21 E of the U.P.
Secondary Education (Services Selection Boards)
Act, 1982 which was inserted by U.P. Act of 37
of 2006 published in the gazette on 11.12.2006.
Therefore, the Old Pension Scheme which
already stood abolished in March 2005 was
neither available to the petitioner on the date of
their appointments nor the petitioners are
entitled for benefit under the said scheme.

B. Doctrine of Election - Rule of Estoppel -
where one knowingly accepts the benefits
of a contract or conveyance or an order,
he is estopped to deny the validity or
binding effect on him of such contract or
conveyance or order

Writ Petition rejected. .(E-10)

List of cases cited:

1. Manoj Kumar Rastogi & ors. Vs. St. of U.P.
Writ Petition No. 35653 of 2003

2. Secretary, St. of Karnataka Vs. Uma Devi
(2006) 4 SCC 1

3. Pratap Kishore Panda & ors. Vs. Agni Charan
Das & ors (2015) 17 SCC 789

4. St. of U.P. Vs. Anand Kumar Yadav (2018) 13
SCC 560

5. Brij Mohan Lal Vs. U.O.I. & ors., (2012) 6 SCC
502

6. Indu Shekhar Singh & ors. Vs. St. of U.P. &
ors., (2006) 8 SCC 129

7. R.N. Gosain Vs. Yashpal Dhir (1992) (4) SCC
683

8. Ramankutti Guptan Vs. Avara (1994) 2 SCC
642

9. Bank of India & ors. Vs. O.P. Swarnakar &
ors. (2003) 2 SCC 721

10. Mrigank Johari & ors. Vs. U.O.I. (2017) 8
SCC 25

11. U.O.I. Vs. Onkar Chand (1988) 9 SCC 298

12. U.O.I. & ors. Vs. K Savitri & ors. (1998) 4
SCC 358

13. Joint Action Committee of Air Line Pilots'
Association of India (ALPAI) & ors. Vs. Director
General of Civil Aviation and or.s (2001) 5 SCC
435

14. Babu Ram @ Durga Prasad Vs. Indra Pal
Singh 1998 (6) SCC 507

15. Mumbai International Airport Pvt. Ltd. Vs.
Golden Chariot Airport & anr .2010 (10) SCC
422

16. Cauvery Coffee Traders, Mangalore Vs.
Hornor
Resources
(International
Company
Limited) (2011) 10 SCC 420

17. Nagubai Ammal Vs. B. Shama Rao AIR 1956
SC 593

18. CIT Vs. MR.P. Firm Muar AIR 1965 SC 1216

19. NTPC Ltd. Vs. Reshmi Constructions,
Builders & Contractors (2004) 2 CC 663

20. Ramesh Chandra Sankla Vs. Vikram Cement
(2008) 14 SCC 58

21. Pradeep Oil Cropn. Vs. MCD (2011) 5 SCC
270

22. S.B.I. & anr. Vs. Raj Kumar (2010) 11 SCC
661

(Delivered by Hon'ble Surya Prakash Kesarwani, J.)
3-5 All. Yogendra Singh Indolia & Ors.Vs. State of U.P. & Ors.
971

1. Heard Sri Anurag Shukla, learned
counsel for the petitioner and the learned
standing counsel for the respondents.

2. This writ petition has been filed
praying for the following relief:-

"i Issue a writ, order or direction
in the nature of mandamus commanding
the Respondents to treat the Petitioners as
covered by Old Pension Scheme.

ii. Issue a writ, order or direction
in the nature of mandamus commanding
the Respondents to make regular deduction
from the salary of the

Petitioners towards General Provident
Fund (G.P.F.) regulary every month."

3. Briefly stated facts of the present
case
are
that
a
Government
Order
No.395/15-7-99-1600(559)/98,
dated
11.10.1999 was issued by the State
Government for part time engagement of
subject expert on honorarium basis with the
conditions that they shall not be State
Government employees and shall not be
entitled for pension, provident fund and
leave etc. Clauses 7, 8, 10, 11 of the
aforesaid
Government
Order
dated
11.10.1999 are reproduced below:-

^^7& mi;qZDr p;fur fo"k; fo'ks"kKksa
dks :0 5000@& izfrekg ,d eq'r fu/kkZfjr
ekuns; dk Hkqxrku fd;k tk;sxkA fu;r ekuns;
ds vfrfjDr dksbZ vU; HkRrk@lqfo/kk vuqeU; ugha
gksxhA pwafd og jkT; deZpkjh ugh gksaxsaA vr% ;g
Li"V fd;k tkrk gSA fd bUgsa isa'ku **Hkfo";
fuf/k** vodk'k vkfn izkIr ugha gksaxsA

8& p;fur fo"k; fo'ks"kK 4 oknu
izfrfnu vFkkZr 24 oknu izfr lIrkg ysaxs ijUrq
fo"k; fo'ks"kK mijksDr v/;k;u dk;Z ds vfrfjDr
vU; dk;Z djus ds fy;s eqDr gksaxsA

10& bl fufeRr fo"k; fo'ks"kKksa dks
ekuns; dk Hkqxrku f'k{kk funs'kd eaMyh; la;qDr
f'k{kk funs'kd dk;kZy; dh daVhtsUlh en ls
fd;k tk;sxkA blds fy;s fof/kor vfrfjDr
Lohd`fr f'k{kk funs'kd@ lEcfU/kr e.Myh;
la;qDr f'k{kk funs'kd dks nh tk;sxhA bl lEcU/k
esa vyx ls fo|ky;ks esa vfrfjDr lalk/ku tqVk;s
tkus ds fy;s izsfjr fd;k tk;sxkA

11& ,sls fo"k; fo'ks"kK izfr o"kZ
'kSf{kd l= ds vad rd dk;Zjr jgsaxsA
xzh"ekodk'k dh vof/k esa ,sls fo"k; fo'ks"kKksa dks
dk;ZeqDr dj fn;k tk;sxk rFkk dksbZ ekuns; ugh
fn;k tk;sxkA^^""

4.

Pursuant
to
the
aforesaid
Government Order dated 11.10.1999, the
petitioners were engaged on honorarium
basis
on
different
dates.
One
such
engagement letter of the petitioner no.1 is
reproduced below:-

dk;kZy;
e.Myh;
la;qDr
f'k{kk
funs'kd vkxjk

vkns'k
la0@ek0&1@9026&9985@2000&2001
fn0
6&9&2000

'kklukns'k
la0@395@15&7&99&16001⁄45591⁄2@98
fn011&10&99]
'kklukns'k
la0@7@15&7&2000&16001⁄45591⁄2@98
fn
06&4&2000
,oa
'kklukns'k
la01869@15&7&16001⁄45591⁄2@98 fn0 13&6&2000
esa fofgr izkfo/kkuksa ds v/khu xfBr p;u lfefr
}kjk fo"k; fo'ks"kK ds :i esa p;fur fuEukafdr
vH;FkhZ dks muds uke ds lEeq[k LrEHk fd
v'kkldh; lgk;rk izkIr ek/;fed fo|ky; esa
dk;ZHkkj djus dh frfFk ls vf/kdre 31 ebZ 2001
rd ds fy;s :i;k 50003⁄400 izfrekg ds ,deq'r
fu;r ekuns; ij rSukr fd;k tkrk gSA

1& mi;qDZr frfFk ds ckn ;g lsok,sa
Lor% lekIr ekuh tk;sxh rFkk blds iwoZ Hkh
fdlh Hkh le; fcuk fdlh iwoZ lwpuk ds lekIr
dh tk ldrh gSA

2& fo"k; fo'ks"kK dks :i;s 50003⁄400
izfrekg ,deq'r fu;r ekuns; ds vfrfjDr dksbZ
vU; HkRrk@lqfo/kk vuqeU; ugh gksxhA pwafd ;g
jkT; deZpkjh ugh gksxsa] bUgsa isa'kusa] Hkfo"; fuf/ksa]
vodk'k vkfn ns; ugh gksxsA
972 INDIAN LAW REPORTS ALLAHABAD SERIES

3& fo"k; fo'ks"kK dks 4 oknu izfrfnu
vFkkZr 24 oknu izfr lIrkg v/;k;u dk;Z djuk
gksxkA mijksDr v/;k;u dk;Z ds vfrfjDr o vU;
dk;Z djus ds fy;s eqDr gksxsaA

4& fo"k; fo'ks"kK dks 'kSf{kd l= ds
vUr rd fnukad 31 ebZ 2000 rd dk;Zjr j[kk
tk;sxk xzh"edfyu vof/k esa fnukad 01 twu 2001
ls mUgsa dk;ZeqDr dj fn;k tk;sxk rFkk dksbZ
ekuns; ugh fn;k tk;sxkA

5& p;fur vH;FkhZ dks dk;ZHkkj xzg.k
djus ds fy;s fdlh izdkj dk ;k=kHkRrk @ekxZO;;
vkfn ns; ugh gksxkA la;qDr f'k{kk funs'kd }kjk
funsZf'kr fo|ky; esa f'k{k.k gsrq mifLFkfr gksus dh
vfUre frfFk 30&09&2000 gSA vfUre frfFk rd
mifLFkr u gksus ij ;g izkf/kdkj Lor% fujLr ekU;
gksxk ftldk iw.kZ mRrjnkf;Ro p;fur vH;FkhZ dk
gksxkA

Ø0 la0 vH;FkhZ@vH;fFkZuh fo"k; dk uke
'kSf{kd ;ksX;rk fo|ky; dk uke fooj.k
 dk
uke
,oa
vkj{k.k
tgka f'k{k.k gsrq
 dh
Js.kh]
irk
mifLFkr gksuk gSA

1 2 3
4 5 6

1 Jh ;ksxsUnz flag] iq= Jh bfrgkl
,e0 ,0 f'ko izlkn jk"Vah;
 gkfde
flag]
xkao]
iks0
b.Vj dkyst]
 vHkqvkiqjk]
iks0
fdjkoyh]
vNusjk] vkxjk
 vkxjk vuq0 4011

Lak;qDr f'k{kk funs'kd

vkxjk

iw0
la0
ek01@9026&9985@2000&2001
fnukad ogh

izfrfyfi fuEukafdr dks lwpukFkZ ,oa
vko';d dk;Zokgh gsrq izsf"kr %&

1&Jh ;ksxsUnz flag] p;fur vH;FkhZ@vH;fFkZuh
dks bl vk'k; ls iszf"kr gS fd os fu/kkZfjr frfFk rd
vius
;ksxnku
dh
lwpuk
fo|ky;
ds
izcU/kd@iz/kkukpk;Z ds le{k izLrqr djsa vU;Fkk ;g
izf/kdkj Lor% fujLr ekuk tk;sxkA

2&izcU/kd@iz/kkukpk;Z f'kao izlkn jk"Vah; b.Vj
dkyst] vNusjk dks bl vk'k; ls izsf"kr fd os fo"k;
fo'ks"kK ds :i esa p;fur vH;FkhZ@vH;fFkZuh dks
rRdky dk;ZHkkj xzg.k djk;sa rFkk bldh lwpuk
rRdky vius ft0 fo0 fu0 dks nsaA dk;ZHkkj xzg.k
djkus ls iwoZ vH;FkhZ@vH;fFkZuh ds leLr
'kSf{kd@izf'k{k.k ewy izek.ki=ksa rFkk vad i=ksa dks Loa;
voykafdr djsaA rFkk mudh ,d&2 izekf.kr izfr
vfHkys[k gsrq lqjf{kr j[k ysa rFkk iw.kZr;k larq"V gksus
ds mikjkUr gh dk;ZHkkj xzg.k djk;as vU;Fkk ;fn blesa
dksbZ =qfV ik;h tkrh gS rks blds fy;s os Lo;a
mRrjnk;h gksxsaA

3& lEcfU/kr ft0 fo fu0 dks bl funsZ'k ds
lkFk fd tuin esa inLFkkfir fd;s x;s fo"k; fo'ks"kKksa
ds dk;ZHkkj xzg.k djus dh lwpuk vH;FkhZokj rRdky
miyC/k djk;saA

4&vij f'k{kk funs'kd ek0 m0 iz0 bykgkcknA

5& f'k{kk funs'kd ek0 m0 iz0 y[kuÅA
la;qDr f'k{kk funs'kd
vkxjk

5. It appears that subsequently a
Government order dated 06.06.2001 and
30.06.2003 imposed certain restrictions for
engagement of subject expert who have
completed three academic sessions, which
was challenged by several persons by filing
the writ petitions, leading writ petition
being Writ Petition No.35653 of 2003
(Manoj Kumar Rastogi and Others Vs.
State Of U.P. and Others) which was
disposed of by order dated 28.10.2003
following the directions given in Writ
Petition No.6319 (S/S) of 2003 (Chandra
Kishore and others Vs. State of U.P. &
others decided on 20.10.2003), which is
reproduced below:-

"i) The impugned order dated
30.6.2003 which prohibits the renewal of
3-5 All. Yogendra Singh Indolia & Ors.Vs. State of U.P. & Ors.
973
those Subject Experts who have completed
three academic session, is quashed.

ii) Similar restriction imposed in
the order dated 6.6.2001 alongwith the
restriction for non-payment during summer
vacation are also quashed.

iii) The opposite party no.2 is
directed to issue direction for all the
Regional Joint Directors for permitting all
the
Subject
Experts
including
the
petitioners in their respective regions to
resume duties immediately if the Subject
experts are eligible and they were selected
according to the prescribed procedure. The
order shall be issued within a period of 10
days so that the students may not suffer any
more.

iv)The opposite party no.1 is
directed to frame a policy for the
regularization of the existing Subject
Experts against the existing 4000 vacancies
of the teachers in the aided educational
institutions after taking into consideration
the aforesaid observation and if required,
make necessary amendment in the U.P.
Intermediate Education Act or U. P.
Secondary Service Selection Board Act
within a period of two months."

6. By U.P. Act No.37 of 2006,
published in the U.P. Gazette Extra Part I,
Section (Ka), dated 11.12.2006, Section 21E
was
inserted
in
U.P.
Secondary
Education (Services Selection Boards) Act
1982, (hereinafter referred to as "the Act
1982"), which is reproduced below:-

"[21E. Absorption of subject
experts. - (1) There shall be a list of subject
experts working in private aided secondary
schools possessing prescribed educational
and training qualification including the
subject
experts
who
have
received
honorarium and worked for a minimum
period of two academic sessions and were
working on September 30, 2006. The list
shall be maintained by the Director in such
manner as may be prescribed.

(2)
Where
any
substantive
vacancy in the post of a teacher in an
institution is to be filled by direct
recruitment, such post shall, at the
instance of the Inspector, be offered by the
Management to a subject expert whose
name is included in the list referred to in
sub-section (1).

(3) Where any subject expert is
offered an appointment in accordance with
the provision of sub-section (2) fails to join
the post within the time allowed, which
shall not be less than seven days, his name
shall be removed from the list, referred to
in sub-section (1).

(4) No appointment of any
teacher to an institution shall be made
under Section 16 unless the list referred to
in sub-section (1) is exhausted.

(5) The subject experts included
in the list referred to in sub-section (1)
shall be absorbed in those institutions
where any substantive vacancy is to be
filled by direct recruitment. No subject
expert shall have claim for appointment to
any particular post.

Explanation.- For the purpose of
this Section, -

(a)"Director"means the Director
of Secondary Education, Uttar Pradesh
and includes any other officer authorized
by him in this behalf;

(b)
the
words"Inspector","Institution","Manageme
nt"and eacher shall have the meaning
respectively assigned to them in the Uttar
Pradesh High School and Intermediate
College (Payment of Salaries of Teachers
and Other Employees) Act, 1971, provided
that "teacher" shall not include a Principal
or Headmaster,
974 INDIAN LAW REPORTS ALLAHABAD SERIES

(c)"subject
experts"mean,
persons working in aided Secondary
Schools on a fixed honorarium appointed
in the prescribed manner on a contractual
basis.]"

7. It appears that in view of the
provisions for absorption inserted in the
Act,
1982
as
aforequoted,
the
petitioners were absorbed and appointed
in
service
as
Teachers
against
substantive existing vacancies. These
appointment orders of the petitioners
have been issued in the month of
September or October 2007. One such
appointment order of the petitioner
No.1, dated 09.10.2007, is reproduced
below:-

^^isz"kd]

ftyk fo|ky; fujh+{kd

dkuiqj nsgkrA

lsok esa]

izcU/kd@lkf/kdkj fu;a=d]

vkbZ0ih0,l0b.Vj
dkyst]
#jk

dkuiqj nsgkrA

i=kad
p;u
cksMZ@
@2006&07 fnukad 09@10@07

fo"k;% m0iz0 ek?;fed f'k{kk lsok
p;u cksMZ 1⁄4la'kks/ku1⁄2 vf/kfu;e 2006 dh /kkjk
21M 1⁄411⁄2 1⁄421⁄2 ds vUrxZr p;fur laLFkkvksa esa
fo"k; fo'ks"kKksa ds vkesyu ds lEcU/k esaA

egksn;]

m0iz0 'kklu dh vf/klwpuk
la0% 1521@79 fo&01 1⁄4d1⁄2@42&2006 fnuakd
11-12-2006 }kjk m0iz0 ek/;fed f'k{kk lsok
p;u cksMZ 1⁄4la'kksf/kr1⁄2 vf/kfu;e 2006 }kjk
futh lgk;rk izkIr ek/;fed fo|ky;ksa esa
dk;Zjr fo"k; fo'ks"kKksa ds vkesyu dh
O;oLFkk lqfuf'pr dh xbZ gSA 'kklukns'k la0%
2920@15-12-2006&16001⁄431⁄2@05 fnuakd 2912-2006 }kjk xfBr lfefr ds ek/;e ls
vkidh laLFkk eas izf'kf{kr izoDrk osrudze
6300&10500 bfrgkl esa fo"k; fo'ks"kK Jh
;ksxsUnzflag bankSfy;k vkRet Jh gkfde flag
bUnkSfy;k fiNM+h tkfr ds vH;FkhZ dks
fu;qfDr gsrq vkidh laLFkk vkoafVr dh xbZ
gSA

vr% mDr ds vuqikyukFkZ vkidks
funsZf'kr fd;k tkrk gS fd m0iz0 ek/;fed
f'k{kk lsok p;u cksMZ 1⁄4la'kksf/kr1⁄2 vf/kfu;e
2006 dh /kkjk &21 M 1⁄421⁄2 esa nh xbZ O;oLFkk
ds vuq#i ekSfyd #i ls fjDr in ij
fu;qDr i= fuxZr djrs gq;s p;fur vH;FkhZ
dks dk;Z Hkkj xzg.k djkuk lqfuf'pr djsaA
dk;ZHkkj xzg.k djkus ls iwoZ p;fur vH;fFkZ;ksa
ds izek.ki=h; ewy vfHkys[k dk lR;kiu
djuk Hkh lqfuf'pr djasA izcU/krU= }kjk 15
fnu esa fu;qfDr i= vfuok;Z #i ls fuxZr
dj fn;k tk;s vU;Fkk dh n'kk eas mijksDr
vf/kfu;e dh /kkjk&21 1⁄4p1⁄2 ds vUrxZr
dk;Zokgh lqfuf'pr dh tk;sxh ftldk lEiw.kZ
mRrjnkf;Ro izcU/krU= dk gksXkkA
Hkonh;
ftyk fo|ky; fujh{kd
dkuiqj nsgkr^^

8. The Old Pension/GPF Scheme was
effective till March 2005. By the Uttar
Pradesh Retirement Benefits (Amendment)
Rules 2005 notified on 07.04.2005, Rule 3
was
inserted
in
the
Uttar
Pradesh
Retirement Benefit Rules 1961 whereby it
was provided that the Rules 1961 shall not
be applicable on employees entering in
service on or after 01.04.2005. It appears
that simultaneously by another Notification
dated 07.04.2005, General Provident Fund
(Uttar Pradesh) Rules 1985 were amended
by the Amendment Rules 2005 which came
into force w.e.f. 01.04.2005. A new
Pension Scheme by Notification No.l-3379/nl
-2005-301(9)/2003,
dated
28.03.2005
was
enacted
which
was
followed by Government Order No. l-31051/nl-2008-301(9)-2003
-
14.8.2008
providing that the New Pension Scheme
shall apply to all State Government
3-5 All. Yogendra Singh Indolia & Ors.Vs. State of U.P. & Ors.
975
employees coming in service on or after
1.4.2005. Details have been provided in the
said scheme, a copy of which has been filed
as Annexure 11 to the writ petition.

9. On the facts as briefly noted above,
the petitioners are claiming benefit of Old
Pension Scheme and, therefore, they have
filed the present writ petition.

Submissions

10.

Learned
counsel
for
the
petitioners submits that the petitioners are
entitled for Old Pension Scheme for reason
that despite directions given in the order
dated 28.10.2003 in Civil Misc. Writ
Petition No.35653 of 2003, the State
Government delayed in framing policy for
regularisation of Subject expert. If the State
Government would have framed the
reqularisation policy immediately after the
aforesaid order in the case of Manoj
Kumar Rastogi and Others (supra) then
the petitioners could have got benefit of
Old Pension Scheme. Therefore, for the
delay caused by the State Government in
framing the regularisation scheme, the
benefit of Old Pension Scheme can not be
denied to the petitioners.

11. Learned standing counsel submits
that the petitioners are not entitled for Old
Pension Scheme in view of the Statutory
Provisions and the nature of their initial
engagement as subject expert.

Discussion and Findings

12. I have carefully considered the
submissions of learned counsels for the
parties.

13. Undisputedly, the petitioners were
engaged as subject expert by different
engagement letters issued in the year 2000,
as part timer on fixed honorarium. The
relevant portion of the Government order
dated
11.10.1999,
permitting
such
engagement and the engagement letters of
the petitioners, as already been reproduced
above, leaves no manner of doubt that the
petitioners were engaged on a fixed
honorarium as a part time subject experts
and they were not to be treated as
Government employee and were not
entitled for benefit of pension, provident
fund and leave etc.

14. Petitioners have been absorbed
and came to be appointed only after Section
21 E was inserted in the Act 1982 on
11.12.2006. The petitioners have been
appointed and became part of service cadre
and became Government Servant only on
their appointments which were made in
September and October 2007 when the new
scheme was in force. The Old Pension
Scheme was abolished in March 2005,
which is much prior to the appointments of
the petitioners. The petitioners themselves
accepted the offer of their appointment by
absorption after well looking into the
relevant provisions and the Government
orders as well as the offer for the post made
to them. The provisions of the Scheme 21 E
or the relevant Government orders or the
Old Pension Scheme and the New Pension
Scheme are not under challenge in the
present writ petition. It is settled law that
writ, order or direction in the nature of
mandamus under Article 226 of the
Constitution of India can not be issued
either contrary to the statutory provisions
or to disobey or ignore the statutory
provisions. Under the circumstances none
of the relief of mandamus as prayed by the
petitioners can be granted to the petitioners.

Rules of absorption
976 INDIAN LAW REPORTS ALLAHABAD SERIES

15. In Secretary, State of Karnataka
Vs. Uma Devi (2006) 4 SCC 1 (paras 3 &
4), the Constitution Bench of Hon'ble
Supreme Court laid down the law that
regular appointment must be the rule. But
sometimes this process is not adhered and
the
constitutional
scheme
of
public
employment is by-passed. A class of
employment which can only be called
"litigious employment", has risen like a
phoenix
seriously
impairing
the
constitutional scheme. Whether the wide
power under Article 226 of the Constitution
of India is intended to be used for a purpose
certain to defeat the concept of social
justice and equal opportunity for all,
subject to affirmative action in the matter
of public employment as recognised by our
Constitution, has to be seriously pondered
over. It is time, that the Courts desist from
issuing orders preventing regular selection
or recruitment at the instance of such
persons and from issuing directions for
continuance of those who have not secured
regular appointments as per procedure
established. In paragraphs 5 & 6 of the
aforesaid judgment in the case of Umadevi
(supra), Hon'ble Supreme Court has held as
under:-

"5. This Court has also on occasions
issued directions which could not be said to
be consistent with the Constitutional
scheme
of
public
employment.
Such
directions are issued presumably on the
basis
of
equitable
considerations
or
individualization of justice. The question
arises, equity to whom? Equity for the
handful of people who have approached the
Court with a claim, or equity for the
teeming millions of this country seeking
employment and seeking a fair opportunity
for competing for employment? When one
side of the coin is considered, the other side
of the coin, has also to be considered and
the way open to any court of law or justice,
is to adhere to the law as laid down by the
Constitution and not to make directions,
which at times, even if do not run counter
to the Constitutional scheme, certainly tend
to
water
down
the
Constitutional
requirements. It is this conflict that is
reflected in these cases referred to the
Constitution Bench.

6. The power of a State as an
employer is more limited than that of a
private employer inasmuch as it is
subjected to constitutional limitations and
cannot be exercised arbitrarily (See
Basu's Shorter Constitution of India).
Article 309 of the Constitution gives the
Government the power to frame rules for
the purpose of laying down the conditions
of service and recruitment of persons to be
appointed to public services and posts in
connection with the affairs of the Union
or any of the States. That Article
contemplates
the
drawing
up
of
a
procedure and rules to regulate the
recruitment and regulate the service
conditions of appointees appointed to
public posts. It is well acknowledged that
because of this, the entire process of
recruitment for services is controlled by
detailed procedure which specify the
necessary qualifications, the mode of
appointment etc. If rules have been made
under Article309 of the Constitution, then
the Government can make appointments
only in accordance with the rules. The
State is meant to be a model employer. The
Employment
Exchanges
(Compulsory
Notification of Vacancies) Act, 1959 was
enacted to ensure equal opportunity for
employment seekers. Though this Act may
not oblige an employer to employ only
those persons who have been sponsored by
employment
exchanges,
it
places
an
obligation on the employer to notify the
vacancies that may arise in the various
3-5 All. Yogendra Singh Indolia & Ors.Vs. State of U.P. & Ors.
977
departments and for filling up of those
vacancies,
based
on
a
procedure.
Normally, statutory rules are framed
under the authority of law governing
employment. It is recognized that no
government order, notification or circular
can be substituted for the statutory rules
framed under the authority of law. This is
because, following any other course could
be disastrous inasmuch as it will deprive
the security of tenure and the right of
equality conferred on civil servants under
the Constitutional scheme. It may even
amount to negating the accepted service
jurisprudence. Therefore, when statutory
rules are framed under Article 309 of the
Constitution which are exhaustive, the
only fair means to adopt is to make
appointments based on the rules so
framed."
 (emphasis supplied)

16. In Pratap Kishore Panda &
others Vs. Agni Charan Das & others
(2015) 17 SCC 789 (para 17), Hon'ble
Supreme Court referred to the law laid
down by the Constitution Bench in
Umadevi (supra) and held that the doctrine
is that if employment of persons is contrary
to or de-hors the statutory provisions and /
or Rules and Regulations, then equities will
not have any play even if such persons
have been rendering services for service
years. The most that can be done for such
employees is for the State Government to
devise a scheme, as a one time measure,
for their absorption so long as the
Governing Statute or the Rules and
Regulations are not infringed.

17. In State of U.P. Vs. Anand Kumar
Yadav (2018) 13 SCC 560, the Hon'ble
Supreme Court summarised the principles of
rule of equity in public employment and
Articles 14 & 16 of the Constitution of India.

18. In Brij Mohan Lal Vs. Union of
India & others (2012) 6 SCC 502 (paras 172
& 173), the Hon'ble Supreme Court held that
absorption in service is not a right.

19. In Indu Shekhar Singh & others
Vs. State of U.P. & others (2006) 8 SCC 129
(para 26), the Hon'ble Supreme Court referred
to its earlier judgment in R.N. Gosain Vs.
Yashpal
Dhir
(1992)
(4)
SCC
683,
Ramankutti Guptan Vs. Avara (1994) 2
SCC 642 and Bank of India & others Vs.
O.P. Swarnakar & others (2003) 2 SCC 721
and held that once person exercises his right
of option and obtain entry in service on the
basis of election, he cannot be allowed to
turn round that the conditions are illegal.
Further more, there is no fundamental right in
regard to counting of the services rendered in an
autonomous body. The past services can be
taken into consideration only when the Rules
permit the same or where a special situation
exits, which would entitle the employee to
obtain such benefit of past service. The
aforesaid judgment in the case of Indu
Shekhar
Singh
(supra)
involved
the
controversy with regard to availability of
benefit of past service rendered prior to
absorption of deputitionist.

20. In the case of Mrigank Johari &
others Vs. Union of India (2017) 8 SCC
256 (para 33), the Hon'ble Supreme Court
has
held
that
since
the
appellants
accepted the terms and conditions of the
absorption,
they
could
not
plead
otherwise.

21. In Union of India Vs Onkar
Chand (1988) 9 SCC 298 (para 12), the
Hon'ble Supreme Court while considering
the benefit of length of service on
deputation before absorption and held that
opting permanent absorption, a person
cannot claim benefits of absorption as
978 INDIAN LAW REPORTS ALLAHABAD SERIES
well as the service put in time in the
deputation quota.

22. In Union of India & others Vs.
K Savitri & others (1998) 4 SCC 358
(paragraph 9), the Hon'ble Supreme Court
held as under:-

"The service conditions of the
redeployed employees under the Rules
being governed by the provisions in the
rules as well as the instructions issued from
the Government of India from time to time
and in view of the clear unambiguous
language in para 11.1 of the instructions
referred to above the conclusion is
irresistible that the past services of the
redeployed staff cannot be counted for
seniority in the new organisation. The
Tribunal, therefore, committed serious
error in directing that the past services
would counted for the seniority of the
employees in the All India Radio."
(emphasis supplied)

23. The principles of law of public
employment as discussed above leaves
no
manner of doubt
that
regular
employment must be a rule. The power
of State as an employer is more limited
than that of the private employer
inasmuch
as
it
is
subject
to
constitutional
limitation.
But
some
time, this process is not adhered and
constitutional
scheme
of
public
employment is by passed as happened
in the present case. Such employment is
called
"litigious
employment".
Absorption in public employment is not
a right. It is an exception to the normal
rule of public employment. It is subject
to conditions of absorption. Once the
petitioners have knowingly and with
open eyes exercised the option for their
absorption in public employment, they
cannot turn round and say that New
Pension Scheme should not be enforced
and instead the Old Pension Scheme
which already stood abolished in March
2005 should be applied to them.

24 It is settled law that when a
scheme is abolished, even pending
applications seeking benefit of the
scheme, unless saved, will also cease to
exist. Reference in this regard may be
had
to
the
judgment
of
Hon'ble
Supreme Court in the case of State
Bank of India and another vs. Raj
Kumar, (2010) 11 SCC 661.

25. In the present set of facts when
the petitioners claim to have been
appointed, Old Pension Scheme was not
in existence. It was abolished in March
2005, whereas the petitioners have been
appointed by absorption in the months
of September or October 2007. The
basis of their appointments is the
provision of Section 21 E of the Act,
1982 which was inserted by U.P. Act 37
of 2006 published in the gazette on
11.12.2006. Therefore, the Old Pension
Scheme which already stood abolished
in March 2005 was neither available to
the petitioner on the date of their
appointments nor the petitioners are
entitled for benefit under the said
scheme.

Estoppel

26. The petitioners have elected to
accept their appointments by absorption
pursuant to the provisions of Section 21 E.
Their appointment is based on the doctrine
of election which is Rule of estoppel which
postulates that no party can accept and
reject the same instrument and that 'a
person cannot say at one time that a
3-5 All. Mohammad Shoeab Khan & Anr. Vs. State of U.P. & Ors.
979
transaction is valid and thereby obtain
some advantage to which he could only be
entitled on the footing that it is valid and
then turn round and say that it is void for
the purpose of securing some other
advantage.'

27. As per Halsbury's Laws of
England
(4th
Edition)
Vol.
16
(Paragraph
1508),
after
taking
an
advantage under an order a party may be
precluded from saying that it is invalid and
asking to set it aside.

28. In the case of Joint Action
Committee of Air Line Pilots' Association of
India (ALPAI) and others v. Director
General of Civil Aviation and others, (2001)
5 SCC 435 (Paragraph-12), Hon'ble Supreme
Court referred to its earlier judgments in the
case of Babu Ram alias Durga Prasad v.
Indra Pal Singh, 1998(6) SCC 358, P.R.
Deshpande v. Maruti Balaram Haibatti,
1998(6) SCC 507 and Mumbai International
Airport Private Limited v. Golden Chariot
Airport and another, 2010 (10) SCC 422 and
held that the doctrine of election is based on the
rule of estoppel. The doctrine of estoppel by
election is one of the species of estoppel in pais
(or equitable estoppel) which is a rule in equity.
By that rule, a person may be precluded by his
actions or conduct or silence when it is his duty
to speak, from asserting a right which he
otherwise would have had.

29. In the case of Cauvery Coffee
Traders, Mangalore v. Hornor Resources
(International Company Limited), (2011) 10
SCC 420 (Paragraph 34), Hon'ble Supreme
Court referred to its decision in the case of
Nagubai Ammal v. B. Shama Rao, AIR 1956
SC 593, CIT v. V. MR.P. Firm Muar AIR
1965 SC 1216, NTPC Ltd. v. Reshmi
constructions, Builders & Contractors,
(2004) 2 SCC 663, Ramesh Chandra Sankla
v. Vikram Cement (2008)14 SCC 58 and
Pradeep Oil Corpn. v. MCD (2011) 5 SCC
270 and held that a party cannot be permitted to
"blow hot and cold", "fast and loose" or
"approbate and reprobate". Where one
knowingly accepts the benefits of a contract
or conveyance or an order, he is estopped to
deny the validity or binding effect on him of
such contract or conveyance or order. This
rule is applied to do equity, however, it must not
be applied in a manner as to violate the
principles of right and good conscience. In the
present set of facts the petitioners have
completely failed to establish that they have any
right to claim the benefit of the abolished old
pension scheme which was abolished much
prior to their appointments or a right for
consideration of their appointment pursuant to
Section 21 E of the Act 1982 inserted on
11.12.2006.

30. For all the reasons aforestated, I do
not find any merit in this writ petition.
Consequently, the writ petition fails and is
hereby dismissed.
----------

(2020)03-05ILR A979
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.02.2020

BEFORE

THE HON'BLE YASHWANT VARMA, J.

Writ-A No. 9034 of 2013
with
Writ-A No. 31865 of 2013
with
Writ-A No. 31868 of 2013

Mohammad Shoeb Khan & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners: