Ashutosh Tandon vs State Of ...
2023 Latest Caselaw 21891 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:54354
 
Court No. - 7
 

 
Case :- WRIT - A No. - 24907 of 2020
 

 
Petitioner :- Ashutosh Tandon
 
Respondent :- State Of U.P.Thru.Prin.Secy.Deptt.Of Nagar Vikas And Ors.
 
Counsel for Petitioner :- Ghaus Beg
 
Counsel for Respondent :- C.S.C.,Namit Sharma,Vishal Kumar Upadhyay
 

 
Hon'ble Abdul Moin,J.

1. Heard learned counsel for the petitioner and learned Standing counsel for the respondents.

2. The instant writ petition has been filed by the petitioner with the prayer for quashing of the order dated 12.10.2020 passed by the respondent no.1, a copy of which is annexure no.1 to the petition, whereby the claim of the petitioner for regular appointment has been rejected. Further prayer has been made for issuance of a writ of mandamus commanding the State Government (respondent no.1) to consider the case of the petitioner for ad hoc appointment in the post of Junior Engineer (Electrical) under Rule 31 of U.P. Palika (Centralized) Service Rules, 1966, as given to similarly situated persons namely Parmanand Mishra and others vide orders dated 01.03.2008, 11.05.2010, 14.12.2012, 17.10.2013 & 18.11.2013. A further prayer is to command the respondents for regularization on the post of Junior Engineer (Electrical) of the petitioner in the light of judgments passed by the Hon'ble Supreme Court in the case of Secretary, State of Karnataka Vs. Uma Devi (2006) 4 SCC 1 as well as in the case of Sheo Narayan Nagar Vs. State of U.P. and Others (2017) SCC OnLine SC 1502 along with the prayer to command the respondents to pay the petitioner the regular pay scale.

3. Bereft of unnecessary details, the facts of the case as set forth by the learned counsel for the petitioner is that the petitioner has been working on a contractual basis as a Junior Engineer (Electrical) since 01.07.1999. The petitioner claims to have filed a claim petition in the year 2009 before the U.P. State Public Services Tribunal, Lucknow for regularization of his services. The said claim petition was disposed of vide order dated 23.04.2009 with a direction to the respondents to send the name of the petitioner for approval to the U.P. Public Services Commission Allahabad in accordance with law. A copy of the said judgment is annexure no.6 to the petition. Subsequent thereto, the Additional Municipal Commissioner has forward the case of the petitioner to the Director, Local Bodies i.e. respondent no.2 for compliance of the judgment passed by the learned Tribunal, however, the same did not find favour with the U.P. Public Services Commission Allahabad. Subsequent thereto, a Government Order was issued in July, 2012 for terminating all the illegal appointments. The petitioner was also restrained from performing his duty. In the year 2015, the petitioner claims to have preferred a representation before the State Government to allow the petitioner for being continued on the post of Junior Engineer (Electrical) and the State Government through an order dated 17.03.2017, a copy of which is annexure 13 to the petition, has permitted the petitioner to continue on the said post on contractual basis. The petitioner claims that he continued on the said post but on a contractual basis, however, his services have not been regularized. Being aggrieved, the petitioner filed a Writ Petition No.20821(S/S) of 2019 before this Court. This Court vide judgment and order dated 01.08.2019, a copy of which is annexure no.33 to the petition, disposed of the said writ petition with a direction to the respondents to consider the grievance of the petitioner in the light of the judgment rendered in the case of Shri Padmanad Mishra Vs. State of U.P. and others in Writ Petition No.10509 of 1997 which has been upheld in Special Appeal No.799 of 2006 whereafter the Special Leave to Appeal No.20573 of 2003 was also dismissed. In pursuance thereof, the respondents have passed the impugned order dated 12.10.2020 whereby the case of the petitioner for appointment under Rule 31 of the U.P. Palika (Centralized) Service Rules, 1966 (hereinafter referred to as 'Rules, 1966') has been rejected.

4. Apart from the various grounds which have been taken by the respondents while rejecting the claim of the petitioner, reference has also been given of a Division Bench judgement of this Court in the case of Dr. Ram Saran Rajput Vs. The Secretary Nagar Vikas Anubhag - IV, IInd Floor, U.P. at Lucknow and Others dated 06.08.1998 passed in Civil Misc. Writ Petition No.15385 of 1995 (now Writ A No.11583 of 1995) that the Court has restrained the respondents to make any further appointment under Rule 31 of the Rules, 1966 and thus, the case of the petitioner cannot be considered.

5. Being aggrieved, the instant writ petition has been filed.

6. The submission of learned counsel for the petitioner is that Rule 31 of the Rules, 1966 has been made a mode of recruitment, so far as it pertains to ad-hoc employees, by appointing various persons under the said rules vide orders dated 01.03.2008, 11.05.2010, 14.12.2012, 17.10.2013 & 18.11.2013, copies of which have been filed as annexures 24-27 to the petition and consequently, there cannot be any occasion for the respondents to now state that keeping in view the restraint imposed by the Division Bench of this Court in the case ofDr. Ram Saran Rajput (supra), no appointment under Rule 31 of the Rules, 1966 can be made.

7. The argument of Shri Gaus Beg, learned counsel for the petitioner is that once, persons similarly circumstanced, have been granted the benefit by way of being appointed on ad-hoc basis under the provision of Rule 31 of the Rules, 1966 and that too, subsequent to the judgment of the Division Bench of this Court, as such there cannot be any occasion for the respondents to state before this Court and in the order impugned that there is a ban imposed in the case of Dr. Ram Saran Rajput (supra), which does not entail the petitioner to be appointed under Rule 31 of the Rules, 1966.

8. It is also argued by learned counsel for the petitioner that Rule 31 of the Rules, 1966 still continues to hold forte and thus there cannot be any occasion for the respondents to not appoint the petitioner, even considering the bar as placed by the judgment of Division Bench of this Court in the case ofDr. Ram Saran Rajput (supra), more particularly when the Rule 31 of the Rules, 1966 has not been declared ultra vires. The other argument is that once the rules specifically provide for making ad hoc appointments as such, by judicial order, the State cannot be restrained from making such appointments.

9. On the other hand, learned Standing counsel on the basis of averments contained in the counter affidavit argues that the view as has been taken by the respondents while rejecting the case of the petitioner under Rule 31 of the Rules, 1966 is that there is a specific ban as has been imposed by the Division Bench of this Court in the case ofDr. Ram Saran Rajput (supra) from making any appointments under Rule 31 of Rules, 1966 and merely because certain persons have been appointed without considering the specific ban placed by the Division Bench of this Court, the same cannot entail the petitioner to seek benefits of the aforesaid rule more particularly when there cannot be any negative parity.

10. Heard learned counsel for the parties and perused the record.

11. From perusal of the record, it emerges that the petitioner, who is working on a contractual basis as Junior Engineer (Electrical), has staked his claim for being appointed on ad hoc basis under Rule 31 of the Rules 1966.

12. Rule 31 of the Rules 1966 reads as under:

"Ad hoc and temporary officiating appointments - Notwithstanding anything contained in rule 21, the State Government may also make ad hoc appointments or temporary officiating arrangements for the posts falling vacant substantively or temporarily."

13. A perusal of the aforesaid rule, indicates that the State Government has been given a power of making ad hoc appointments or temporary officiating arrangements for the posts falling vacant substantively or temporarily.

14. Thus, Rule 31 of Rules, 1966 gives the power to the State Government to make ad hoc appointments or temporary officiating arrangements. However, a Division Bench of this Court in the case ofDr. Ram Saran Rajput (supra), a copy of which has been filed as annexure SRA-1 to the supplementary rejoinder affidavit dated 10.08.2021 (page 18) would indicate that the Division Bench of this Court, after considering Rule 31 of the Rules, 1966, has categorically restrained the respondents from making any further appointments under Rule 31 of the Rules, 1966 and has also directed that the respondents will strictly adhere to the requirements of the Rules and would make appointments on a regular basis in the vacancies which are likely to come up in the future.

15. For the sake of convenience, the directions issued by this Court in the case ofDr. Ram Saran Rajput (supra) are reproduced below:

".......In view of the above statement we are of the opinion that the petitioner's grievance is shortly to be set at rest by the respondents by making regular appointments. We provide that the respondents would not make further appointments under rule 31 of the Rules and would strictly adhere to the requirements of the Rule and would make appointments on regular basis in the vacancies which are likely to come up in future.

With the above directions the petition is finally disposed of."

16. From perusal of the aforesaid judgment, it emerges that a restraint has been placed by the Division Bench of this Court in the case ofDr. Ram Saran Rajput (supra) restraining the respondents to not make any appointments under Rule 31 of the Rules, 1966. It is not the case of the petitioner that the aforesaid judgment in the case ofDr. Ram Saran Rajput (supra) has been set aside and thus, it is apparent that the restraint as placed by the Division Bench of this Court still holds good. Thus, till such time the aforesaid restraint is applicable, there cannot be any occasion for this Court to issue a writ of mandamus commanding the respondents to appoint the petitioner under the provisions of Rule 31 of the Rules, 1966.

17. So far as the argument of learned counsel for the petitioner that various other persons have been appointed under Rule 31 of the Rules, 1966 even subsequent to the judgment of the Division Bench of this Court in the case ofDr. Ram Saran Rajput (supra), the said argument is patently misconceived inasmuch as, in case any such appointments have taken place, the same cannot be said to be valid appointments as the said appointments have been made despite the ban / restraint as placed by the Division Bench of this Court. However the Court hastens to add that as the validity of the said appointments have not been raised in the instant petition, consequently the aforesaid observations would only be construed vis-a-vis the petitioner.

18. Moreover, it is a settled position of law that there cannot be any negative parity and in case any benefit has been granted wrongly to a set of employees, the State cannot be compelled to perpetuate the illegality.

19. In this regard, the Apex Court in the case of Arup Das and others vs. State of Assam and others - (2012) 5 SCC 559 has held as under:-

"This Court went on to observe further that even if in some cases appointments had been made by mistake or wrongly, that did not confer any right of appointment to another person, as Article 14 of the Constitution does not envisage negative equality and if the State had committed a mistake, it cannot be forced to perpetuate the said mistake."

20. Likewise, the Apex Court in the case of State of U.P Vs. Raj Kumar Sharma - (2006) 3 SCC 330 has held as under:-

"Even if in some cases appointments have been made by mistake or wrongly that does not confer any right on another person. Article 14 of the Constitution does not envisage negative equality, and if the State committed the mistake it cannot be forced to perpetuate the same mistake. (See: Snehprabha v. State of U.P. & Ors. (AIR 1996 SC 540), Secretary, Jaipur Development Authority, Jaipur, v. Daulat Mal Jain & Ors. (1997 (1) SCC 35), State of Haryana and Ors. v. Ram Kumar Mann (1997 (3) SCC 321), Faridabad C.T. Scan Centre v. D.G. Health Services & Ors. (1997 (7) SCC 752), Jalandhar Improvement Trust, V. Sampuran Singh (AIR 1999 SC 1347), State of Punjab and Others v. Dr. Rajeev Sarwal (1999 (9) SCC 240), Yogesh Kumar and Ors. v. Govt. of NCT, Delhi and Ors. (2003 (3) SCC 548), Union of India and Anr. v. International Trading Co. and Anr. (2003 (5) SCC 437) and Kastha Niwarak G.S.S. Maryadit, Indore v. President, Indore Development Authority (JT 2006 (2) SC 259)."

21. The Apex Court in the case ofPankjeshwar Sharma and others vs. State of Jammu and Kashmir and others - (2021) 2 SCC 188 has held as under:-

"This Court further held that even if in some cases appointments had been made erroneously or by mistake, that did not confer any right of appointment to another person as Article 14 of the Constitution does not envisage negative equality and if the State or its authority had committed a mistake at any given stage, it cannot be forced to perpetuate the said mistake under the writ jurisdiction of the High Court under Article 226 of the Constitution."

22. The other argument of learned counsel for the petitioner that Rule 31 of Rules, 1966 still continues to hold forte and thus by means of a judgment, the State cannot be restrained from making appointments under Rule 31 of the Rules, 1966, the said argument is also patently misconceived, inasmuch as it is the Courts which interprets the rules. Rule 31 of Rules, 1966 did not find favour in the judgment of Division Bench of this Court in the case ofDr. Ram Saran Rajput (supra) hence the restraint was placed by it. Even though, Rule 31 of Rules, 1966 may not have been declared ultra vires but till such time the ban / restraint imposed by the Division Bench of this Court continues to hold good, there cannot be any occasion for a writ Court to issue a writ of mandamus which would be in conflict with the specific direction as issued by the Division Bench. Hence, the said argument is rejected.

23. Considering the aforesaid discussion, no case is made out. Accordingly, the writ petition is dismissed.

Order Date :- 16.8.2023

S. Shivhare