Vivek Srivastava vs State Of U.P. And 2 Others
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Allahabad High Court

Vivek Srivastava vs State Of U.P. And 2 Others on 18 February, 2025

Author: Saurabh Shyam Shamshery

Bench: Saurabh Shyam Shamshery

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:23504
 
Court No. - 10
 

 
Case :- WRIT - A No. - 20472 of 2019
 

 
Petitioner :- Vivek Srivastava
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Ashok Khare, Sr. Advocate,Seemant Singh,Sunil Kumar Srivastava
 
Counsel for Respondent :- Ajay Singh,C.S.C.
 

 
Hon'ble Saurabh Shyam Shamshery,J.
 

1. Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri Seemant Singh, learned counsel for petitioner and Sri Ajay Singh, learned counsel for respondents.

2. The facts which are not under dispute that petitioner was appointed ad hoc as Trainee Examination Clerk with the respondent-Institute of Engineering and Rural Technology, Allahabad being a compassionate appointment. Initially, the petitioner was appointed on consolidated salary and, thereafter, he was placed in U.P. Government grade.

3. The petitioner has thereafter filed an application for absorption mainly on basis of a direction issued in writ petition filed by similarly situated person, namely, Smt. Archana Verma (Writ Petition No.34968 of 1993), however, it was not decided, therefore, he filed a Writ Petition No.15274 of 2016, which was disposed of by order dated 06.04.2016 and for reference the same is reproduced hereinafter:-

"Heard Sri Vivek Kumar Singh, learned counsel for the petitioner, Sri Ajay Singh holding brief of Sri Amrendra Nath Singh, learned counsel for the respondent no.1 and Sri Mata Prasad, learned Additional Chief Standing Counsel for the respondent no.2.

The petitioner is seeking absorption of his services in Group-A as a regular employee of the I.E.R.T.

Reliance has been placed upon a Single Judge Judgement of this Court in Writ Petition No.34968 of 1993, Smt. Archana Verma Vs. The Director I.E.R.T. & Another and the Division Bench Judgement of this Court in Special Appeal Defective No.714 of 2015, Director, I.E.R.T. Allahabad Vs. Smt. Archana Verma and Another.

No useful purpose would be served by keeping this writ petition pending.

This writ petition is, therefore, disposed of with the consent of the learned counsel for the parties with a direction to the respondent no.1, Director, I.E.R.T, Allahabad to consider and decide the claim of the petitioner for absorption of his services in Group-A as a regular employee keeping in mind the two judgements referred to hereinabove and in accordance with law within a period of three months from the date a certified copy of this order is received in his office."

4. The aforesaid order was not complied with, therefore, contempt proceedings were initiated and finally by the impugned order dated 03.07.2017, claim of the petitioner was rejected.

5. The aforesaid order was challenged by the petitioner by way of filing a writ petition bearing Writ-A No.5919 of 2018 (Vivek Srivastava v. I.E.R.T.) which was disposed of with direction to revisit the matter and when the aforesaid order was again not complied with, he has to initiate a fresh contempt proceeding and, thereafter, the impugned order was passed whereby not only the petitioner's claim for absorption was rejected, but his services were also terminated. For reference the relevant part of the order is reproduced hereinafter:-

"Whereas you were appointed to the post of Clerk at a Fixed/Consolidated pay of Rs.330/- per month for the fixed tenure and inter alia the terms of appointment as per your appointment letter dated 01-04-1987, clearly stipulated that your services could be terminated without giving any notice, further, your appointment/continuance after 01-04-1987 was not authorized by the then committee of management and also it was not against any sanctioned post.

Further your reappointment after 01-04-1987 was without mandatory authorization of the then managing committee, also it was not against any sanctioned post. In the year 1990, you were illegally accorded benefit of pay scale of class III employee on 17-07-1990 i.e., Rs.950-1500 by the then Director.

Whereas in view to enhance supervision, the State Government appointed an Authorized Controller and an enquiry was instituted by then Finance controller, Technical Education of the State Government, in the Institute to ascertain the illegality committed by the then Directors of IERT in the recruitment and illegal continuance of the services of "employees recruited on contract/ not against any sanctioned posts in the diploma division". The report of the Finance Controller dated 16.04.1998, inter alia recommended salary freeze of all employees illegally recruited against not any sanctioned posts/contrary to rules.

It is clearly evident from the available record that you were financially benefited with irregular enhancement in you salary within duration of your services in the Institute. The grant of benefit of enhanced pay scale Rs.950-1500 in the year 1990 was totally illegal. The Institute took cognizance of the said illegality in recruitment in diploma division and vide order dated 01-03-2014 implemented the salary freeze in accordance with the enquiry report of the Finance Controller. Since, your appointment was not against any sanctioned post, your salary since the time of your recruitment was never provided from the State Governments grant-in-aid account; rather it was being paid from the Institute's internal resources. The said order dated 01.03.2014 was challenged by 07 employees of diploma division before the Hon'ble High Court wherein Hon'ble High Court vide order dated 10-05-2018 inter alia issued directions for payment of salary "as last paid to them inn May 2013 alongwith arrears with effect from June 2013". The order dated 10.05.2018 was challenged by the Institute before the Hon'ble Supreme Court, presently pending wherein the Institute has filed details financial statements highlighting the impossible financial situation that this Institute will face if the Institute is to continue in service and pay salary according to the directions of Hon'ble High Court vide dated 10.5.2018 without external financial assistance. Since, the state Government has also refused to give any financial help in this regard as your appointment is not against any sanctioned post, hence there is no option left with the Institute but to do away with your service.

In view of the above and the present contingent adverse financial liability of the diploma division in which you are employed which has arise consequent to order dated 10-05-2018, also taking into account depleting internal financial resources, the Institute, pursuant to temporary and contractual nature of your appointment and also in consideration of the fact that your recruitment was not against any sanctioned post, your services are hereby terminated forthwith with immediate effect. You shall be paid salary for full month of November, 2019 and also extra one month salary in lieu of notice period. These sums are being credited to your bank account."

6. Learned counsel for the petitioner submits that in pursuance of the earlier order passed by this Court, the consideration was in regard to absorption of the petition. However, the respondents have travelled beyond the order and direction and look into the appointment of the petitioner and ultimately by impugned order has cancelled it. The aforesaid approach was absolutely illegal.

7. Learned counsel placed reliance the judgments passed by the High Court of Madhya Pradesh at Jabalpur in case titled Dharmendra Kumar Tripathi v. State of M.P. and others, Writ Appeal No.977 of 2021 and the Supreme Court in case titled State of U.P. and another v. Aishwarya Pandey, Special Leave to Appeal No. 19255 of 2021 that appointment on compassionate ground shall be on regular basis.

8. Per contra, Mr. Ajay Singh, learned counsel for the respondents has tried to support the impugned order, however, he submits that the impugned order has been passed without considering the above facts of the case as well as legal position and prays that the claim of the petitioner can be relooked.

9. In the aforesaid circumstances, since the order impugned is on the face of it is illegal, since it was passed without considering basic facts of the present case as well as position of law, therefore, the impugned order is set aside and the matter is remitted back to pass afresh order within a short period.

10. The Court takes note that the impugned order was stayed by this Court by an order dated 29.12.2019 and the petitioner has worked till the age of his superannuation and has retired during the pendency of this writ petition therefore the respondent will take note the fact that he has already attained the age of superannuation, while deciding afresh.

11. The writ petition is accordingly disposed of.

Order Date :- 18.2.2025 / A.N. Mishra