Shailendra Kumar Saxena And ... vs State Of U.P. And Another
2023 Latest Caselaw 21919 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:165552
 
Court No. - 10
 

 
Case :- WRIT - A No. - 59234 of 2008
 

 
Petitioner :- Shailendra Kumar Saxena And Others
 
Respondent :- State of U.P. and Another
 
Counsel for Petitioner :- Chandra Narayan Tripathi,Durga Tiwari,Madan G. Sharma,Ms. Bushra Maryam,P.K.Mishra,Rajesh Singh,S.N. Tripathi,T.K. Mishra,Yogesh Kumar Saxena
 
Counsel for Respondent :- C.S.C.
 
AND
 
Case :- WRIT - A No. - 64249 of 2008
 

 
Petitioner :- Kamini Srivastava And Another
 
Respondent :- State of U.P. and Others
 
Counsel for Petitioner :- Atul Kumar - 1st,T.K. Mishra
 
Counsel for Respondent :- C.S.C.
 
AND
 
Case :- WRIT - A No. - 8921 of 2009
 

 
Petitioner :- Ashok Kumar Tiwari And Others
 
Respondent :- State of U.P. and Others
 
Counsel for Petitioner :- A.K. Srivastava,T.K. Mishra
 
Counsel for Respondent :- C.S.C.
 
AND
 
Case :- WRIT - A No. - 39285 of 2009
 

 
Petitioner :- Santosh Kumar Sonkar
 
Respondent :- State of U.P. and Another
 
Counsel for Petitioner :- Atul Kumar Ist,J.L. Maurya
 
Counsel for Respondent :- C.S.C.
 
AND
 
Case :- WRIT - A No. - 43583 of 2014
 

 
Petitioner :- Mukul Agarwal And Anr
 
Respondent :- State Of U.P. And Anr
 
Counsel for Petitioner :- Durga Tiwari,D.K.Singh,Devendra Kumar,Shyam Singh Somvanshi,Tapan Kumar Mishra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Kshitij Shailendra,J.

1. Heard Shri Rajesh Singh along with Shri Shyam Singh Somvanshi, learned counsel for the petitioners, learned Standing Counsel for the State-respondents and perused the record.

2. This bunch of five writ petitions contains identical controversy and, therefore, all the writ petitions are being decided by this common judgment.

3. Various affidavits have been exchanged in between the parties, which form the part of the record, however, considering the limited issue involved in the writ petition, excluding the unnecessary details for the purposes of pronouncing judgment, certain facts and proceedings are being taken note of.

4. The petitioners were appointed on the post of Certificate Writers in the year 1986 and in 1988, they were not allowed to work. A writ petition being Civil Misc.Writ Petition No.10718 of 1988 (Anil Kumar Misra and others vs. Madhyamik Shiksha Parishad, UP) along with five other writ petitions were filed by the petitioners, which were allowed by this Court by judgment and order dated 11.1.1991 and following directions were issued:

"(a) By a writ of mandamus it is directed that the petitioners shall be taken back a daily wage/casual workers within one month from the date of production of a certified copy of this order before the respondent and shall be paid wages according to law by the respondent;

(b) The petitioners shall be paid wages at such rates as are admissible to the regular employees of the Board for rendering similar services which are rendered by the petitioners;

(c) The petitioners shall be considered for appointment as Lower Division Clerk on the basis of their qualifications and seniority as daily wage labourers as and when posts are available or fell vacant with the respondents;

(d) Their services shall not be dispensed with till they are absorbed in the regular establishment against the posts as and when the same are available or fall vacant; and

(e) From the date their services were orally terminated till the date they are taken back by the respondent Board, they shall not be entitled to any wages for they did not render any work to the Board."

5. The Board assailed the decision of this Court by filing various Special Leave Petitions before the Apex Court. The Supreme Court allowed the appeals setting aside the judgment of the High Court by order dated 19.8.1992 and for the purposes of the present case, paragraph-6 of the judgment of the Apex Court being quite relevant is reproduced as follows:

"6. The appellant-Parishad has offered to consider the cases of these 27 respondents, who were writ petitioners before the High Court, for purposes of recruitment to the post of Lower Division Clerks as and when vacancies arise and steps for filling up of those posts are taken up by the appellant. The appellant submits that if the respondents make appropriate applications at the appropriate time of filling up of the vacancies and if they possess the requisite minimum qualifications for the posts and if they were not beyond the prescribed maximum age limit as on the date on which utilization of their services commenced in the year 1986, their cases would be duly considered, affording to them preference in the recruitment, other conditions being equal subject to the reservation-policy. Appellant also requires registration of the respondents with the employment exchange. For purposes of the age limit, their respective age as at the time of commencement of their earlier casual employment would be reckoned."

6. Learned counsel for the petitioners has placed reliance upon an order dated 6.9.2012 passed in Contempt Application (Civil) No.2782 of 2009 (Sushil Kumar Srivastava and another vs. Smt.Prabha Tripathi, Secy.Madhyamik Shiksha Parishad) and submits that before the Contempt Court, a statement was made on behalf of respondent Board that in case Board advertises any vacancy in future in which typing-test is not essential qualification, the applicants may be considered against such vacancy provided they applied. He, therefore, contended that despite the aforesaid undertaking given by the Board, the petitioners were never adjusted nor they were allowed to participate in the subsequent selection.

7. It is admitted by learned counsel for the petitioners that certain petitioners have already attained the age of superannuation whereas claim of some of the petitioners is still alive. In sum and substance, the contention of learned counsel for the petitioners is that the respondents are not considering the claim of the petitioners despite the intervention made by the Supreme Court.

8. Learned Standing Counsel submits that though the order of the High Court was set aside by the Apex Court and certain directions were issued, it is clearly provided in the order dated 19.8.1992 passed by the Apex Court that the claim of the petitioners was to be considered in case, they fulfill the requisite qualification. However, learned Standing Counsel admits that Supreme Court had granted certain age relaxation to the petitioners. Learned Standing Counsel further submits that pursuant to the directions of the Supreme Court, the petitioners made their claim and when the typing-test was held, they failed therein and, therefore, their claim was rejected by order dated 14.1.2011.

9. Learned counsel for the petitioners submits that order dated 14.1.2011 has been assailed by filing amendment application, which was allowed and the order being illegal may be set aside granting reliefs to the petitioners, who are yet to attain the age of superannuation and insofar as those who have already attained the age of superannuation, though not appointed earlier, should be given some benefit.

10. Having heard learned counsel for the parties, I find that the Writ Court issued certain positive directions in favour of the petitioners, however, the Supreme Court while allowing the Special Leave Petitions vide order dated 19.8.1992 clearly observed that in case, the respondents before the Supreme Court, i.e., the petitioners herein, may file appropriate applications at appropriate time of filling up all the vacancies and if they possess requisite minimum qualification for the posts and if they were not beyond the prescribed maximum age limit as on the date on which regularization of their services commenced in the year 1986, their cases would be duly considered.

11. I find that pursuant to the directions of the Supreme Court, the claim of the petitioners was not rejected on the ground of age-bar, rather they failed in the typing-test conducted by respondent-Board. Insofar as the observations made by the Contempt Court are concerned, the order dated 6.9.2012 clearly mentions that in case, the applicants, i.e., the petitioners, succeed in the pending writ petitions (present writ petitions) and despite the same, the Board does not comply with the order, it would be open to the petitioners to approach the Contempt Court again.

12. Therefore, the question arises as to whether the directions issued by the Contempt Court for consideration of the claim of the petitioners against publication of new vacancies can still be considered in respect of those, who have not attained the age of superannuation.

13. From overall facts and circumstances and after carefully perusing all the orders of the Writ Court, Contempt Court and the Supreme Court, I find that once the Board considered the claim of the petitioners pursuant to the directions of the Apex Court and rejected the same by order dated 14.1.2011 in which I do not find any factual or legal infirmity, no benefit can be derived by the petitioners. Further, by the order dated 6.9.2012 passed by the Contempt Court, the fate of the petitioners was made dependent upon their success in the present bunch of writ petitions.

14. The petitioners having failed in the typing-test, I do not find that discontinuance of the services of the petitioners, initially and later on after the intervention of the Apex Court, suffers from any infirmity.

15. All the writ petitions lack merit and are hereby dismissed.

Order Date :- 16.8.2023

LN Tripathi