Allahabad High Court

Arvind Kumar Jain vs State Of U.P.And 3 Ors. on 4 February, 2025

Author: Saurabh Shyam Shamshery

Bench: Saurabh Shyam Shamshery





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 



 
Neutral Citation No. - 2025:AHC:14912
 
Judgment reserved  24.1.2025 
 
Delivered on  4.2.2025
 
Court No. - 10 
 
Case :- WRIT - A No. - 22080 of 2013 
 
Petitioner :- Arvind Kumar Jain 
 
Respondent :- State Of U.P.And 3 Ors. 
 
Counsel for Petitioner :- Dharmendra Kumar
 
Srivastava,Rajendra Rai 
 
Counsel for Respondent :- C.S.C. 
 
With 
 
Case :- WRIT - A No. - 50638 of 2016
 
Petitioner :- Brij Bhooshan Badal 
 
Respondent :- State Of U.P. And 5 Ors. 
 
Counsel for Petitioner :- Gaurang Dwivedi,Suresh C. Dwivedi,Sr. Advocate,Vikas Tiwari 
 
Counsel for Respondent :- C.S.C. 
 
Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Sri Dharmendra Kumar Srivastava, learned counsel for petitioner in Writ Petition No.22080 of 2013 and Sri H.N. Singh, learned Senior Advocate assisted by Sri Gaurang Dwivedi, learned counsel for petitioner in Writ Petition No.50638 of 2016 and Sri Saurabh, learned Standing Counsel for State respondents. None appeared on behalf of respondent no.6 (Committee of Management of concerned College) despite service was reported sufficient.

2. Petitioners in the above noted writ petitions have claimed that they have been appointed as Assistant Teachers on CT Grade on 12.9.1987 and 1.12.1987 respectively and their appointments were approved by the Authorized Controller, since at that moment there was a dispute in regard to Committee of Management of the concerned College and later on they were regularised along with three other persons vide common order dated 2.11.1992.

3. Petitioner no.1, Brij Bhushan Badal, retired on 31.3.2016 after attaining the age of superannuation, whereas the petitioner no.2 Arvind Kumar Jain was aged about 53 years when the above referred writ petition was filed in the year 2013, therefore, he has also attained the age of supperannuation.

4. Both the petitioners are aggrieved that the common order of regularization dated 2.11.1992 was not considered to be a genuine document, therefore, claim of the petitioner no.1, Brij Bhushan Badal for pension was rejected as well as the claim of Sri Arvind Kumar Jain for salary was also rejected despite they have served for a substantial period i.e. for more than two and a half decades.

5. Learned counsel for the petitioners has mainly argued that initially the regularization order dated 2.11.1992 was completely set-aside being a forged document and not only the claim of the petitioners, but of other three persons was also rejected that they were never regularised. However, later on, claim of at least two persons out of said five persons for regularization was considered that they were already regularized before the said order i.e. 9.3.1992 and for that learned counsel for the petitioners refers personal affidavits filed by one of the State respondent in both writ petitions and is reproduced hereinafter:

"That after passing of the order dated 17.01.2013 declaring the regularization order dated 02.11.1992 as nonest and ineffective, Sri Rajesh Kumar Assistant Teacher filed an application dated 09.01.2017 informed the District Inspector of Schools, Jalaun that his regularization order was already passed on 13.07.1985 and as such the District Inspector of Schools, Jalaun removed the name of Rajesh Kumar from the order dated 17.01.2013 by order dated 12.06.2017. Similarly Arun Kumar Durwar and Gajendra Pratap Singh both Assistant Teacher also filed an application dated 03.11.2021 and informed the then District Inspector of Schools, Jalaun that their regularization was already made by order dated 02.05.1992 and as such the District Inspector of Schools, Jalaun vide order dated 23.11.2021 has also removed the names of Arun Kumar Durwar and Gajendra Pratap Singh from the impugned order dated 17.01.2013 as their services has already been regularized before the alleged order dated 02.11.1992, Hence, the aforesaid fact also proved that the alleged order of regularization dated 02.11.1992 was totally forged and fictitious and this fact was further affirmed by the order dated 03.01.2017 passed by the Joint Director of Education Jhansi Region Jhansi."

6. Learned counsel for the petitioners further submitted that the benefit granted to other persons in exclusion of petitioners were arbitrary and they are also entitled to same relief.

7. Per contra, learned Standing Counsel has supported the impugned order that since there were documents in regard to other two persons that they were regularized even before the petitioners were regularized vide common order dated 2.11.1992, therefore, they cannot be prejudiced since they were included in the document which was forged i.e. common order dated 2.11.1992 wrongly.

8. I have considered the above submissions and perused the records.

9. Two circumstances appears to be in favour of petitioners;

(i) They have worked for more than two and a half decades and no dispute was raised earlier and there was no reason to mention the name of persons who have already been regularized in the impugned order along with petitioners.

(ii) No specific reason was assigned as to why their names were included in the impugned orders and in case some benefit has been granted to other persons, same can be extended to the petitioners also.

10. Selection process does not appear to be under much dispute. Question is only as to whether the petitioners were regularized or not as well as that once the respondents have given benefit to two persons in the said list, therefore, Court is of considered opinion that in view of a recent judgment passed by Supreme Court in the case of Radhey Shyam Yadav & Anr Vs. State of U.P. & Ors, 2024 SCC OnLine SC 10, present petitioners are entitled for same relief. Relevant paragraphs 24, 31 and 32 thereof are reproduced hereinafter:

24.Assuming the case of the State to be true and taking it at its highest, the factual position would come to this, namely, that while the State sanctioned two vacancies, the school went ahead and recruited three. The State has no proof of commission of any malpractice by the appellants. The State approved their appointments, and the approval order till date has not been cancelled. The appointments have not been terminated. No action has been taken against the school and the school continues to receive the aid

31. More recently, this Court in Vivek Kaisth (supra), following the judgment of the Constitution Bench in Sivanandan C.T. v. High Court of Kerala, 2023 SCC OnLine SC 994 protected the appointments of the appellants even after finding that their appointments were in excess of the advertised vacancies. This Court held as under:--

"32. ... .... Today, when we are delivering this judgment the two appellants have already served as Judicial Officers for nearly 10 years. Meanwhile, they have also been promoted to the next higher post of Civil Judge (Senior Division). In this process of their selection and appointment (which has obviously benefitted them), nothing has been brought to our notice which may suggest any favouritism, nepotism or so-called blame as to the conduct of these two appellants, in securing these appointments. The High Court in fact notes this factor. While placing the blame on the State Commission it records that ".......... there is nothing on record suggestive of the fact that any mala fides were behind the selection of respondents Nos. 4 and 6.........."

"34. The appellants were not entitled for any equitable relief in view of the High Court as they were the beneficiaries of an illegality committed by the Selection/appointing authority. But then it failed to take this question further, which in our opinion, it ought to have done. What the High Court never answered was as to how much of this blame of "illegal" selection and appointment would rest on the High Court (on its administrative side). Undoubtedly, with all intentions of timely filling of the vacancies, the High Court still cannot escape the blame....."

"36. What is also important for our consideration at this stage is that the appellants in the present case have been working as Judicial Officers now for nearly 10 years. They are now Civil Judge (Senior Division). These judicial officers now have a rich experience of 10 years of judicial service behind them. Therefore, unseating the present appellants from their posts would not be in public interest. Ordinarily, these factors as we have referred above, would not matter, once the very appointment is held to be wrong. But we also cannot fail to consider that the appellants were appointed from the list of candidates who had successfully passed the written examination and viva voce and they were in the merit list. Secondly, it is nobody's case that the appellants have been appointed by way of favouritism, nepotism or due to any act which can even remotely be called as "blameworthy". Finally, they have now been working as judges for ten years. There is hence a special equity which leans in favour of the appellants. In a recent Constitution Bench decision of this Court in Sivanandan C.T. v. High Court of Kerala 2023 SCC OnLine SC 994 though the finding arrived at by this Court was that the Rules of the game were changed by the High Court of Kerala by prescribing minimum marks for the viva voce, which were not existing in the Rules and therefore in essence the appointment itself was in violation of the Rules, yet considering that those persons who had secured appointments under this selection have now been working for more than 6 years it was held that it would not be in public interest to unseat them."

(emphasis supplied)

32. The situation of the appellants in the present case is no different from the individuals whose appointments were protected in the cases cited hereinabove. They had no blameworthy conduct. They were bona fide applicants from the open market. The alleged mischief, even according to the State, was at the end of the School and its Manager. It will be a travesty of justice if relief is denied to the appellants. Enormous prejudice would also occur to them."

11. Accordingly, the impugned orders dated 17.1.2013, are set-aside and petitioners are considered to be regularized and therefore, entitled for consequential reliefs.

12. With the aforesaid observations/direction, both the writ petitions are disposed of.

Order Date :- 4.2.2025