Tarkeshwar Mishra And Others vs Rajya Krishi Utpadan Mandi Parishad And ...
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Allahabad High Court

Tarkeshwar Mishra And Others vs Rajya Krishi Utpadan Mandi Parishad And ... on 4 September, 2025

Author: Saurabh Shyam Shamshery

Bench: Saurabh Shyam Shamshery

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:156619
 

 
 
 
HIGH COURT OF JUDICATURE AT ALLAHABAD 
 
WRIT - A No. - 40550 of 1997 
 
 
 
   
 
   Tarkeshwar Mishra And Others    
 
  .....Petitioner(s)   
 
 Versus  
 
   Rajya Krishi Utpadan Mandi Parishad And Others    
 
  .....Respondent(s)     
 
 
 
   
 
   
 
  
 
Counsel for Petitioner(s)   
 
:   
 
M.K.Kushwaha, Rudeshwari Prasad, Smt. Mahima Kushwaha   
 
  
 
Counsel for Respondent(s)   
 
:   
 
Archit Mandhyan, S.C.   
 
     
 
 Court No. - 5
 
 
 
 
 
   
 
 HON'BLE SAURABH SHYAM SHAMSHERY, J.     

Order on Review Application No.17768 of 1998

1. Heard Smt. Mahima Kushwaha, learned counsel for petitioners and Sri Archit Mandhyan, learned counsel for respondent.

2. The facts of present case are disturbing. It is not under dispute that present Writ Petition No.40550 of 1997 was dismissed by a reasoned order dated 03.02.1998. For reference the same is reproduced hereinafter :-

"Petitioners have challenged the orders dated 19/20.11.1997 at Annexures 22 to 27 to the writ petition seeking other reliefs.

The respondents filed counter-affidavit and the petitioners filed rejoinder-affidavit.

Heard Mr. V.M.Sahai, learned counsel for the petitioner and Mr. B.D. Mandhyan, learned counsel for the respondents.

Petitioners claimed that petitioners no.1 and 2 were appointed as Mandi Assistants and petitioners no.3 to 6 were appointed as Mandi Abhikshak when the Director by order dated 11.1.1995 directed filling up of all vacant posts by selection under Rules. Selection Committee in pursuance of such direction requested the Employment Exchange to send names of candidates by letter dated 6.2.1996. The Employment Exchange on 9.2.1996 informed that names can only be sent if request is made in the prescribed format. By letter dated 13.11.1995 the Deputy Director (Administration) wrote letter to the Secretary to proceed with the appointment and appointments be made within one week. On 14.2.1996 the respondent no.4 sent a requisition to the Employment Exchange Officer in the prescribed format seeking names for appointment. As names were not sent by the Employment Exchange Officer the respondent no.4 informed the Directorate that as work was suffering the Selection Committee has entertained direct applications of recruitment and finalised a list of selected candidates

The Director granted approval on the body of the said letter itself on 27.3.1996 for appointment for a period of 89 days. Thereafter appointment letters were issued to the petitioners. Extension was granted after expiry of the said period for appointment till regular selection is made and again approval was granted by the Director on 12.7.1996 for a period of 89 days or till the regular appointment is made after selection. On a complain made alleging illegality in the appointment of the petitioners by letter dated 26.10.1997, the Additional Director (Administration) wrote letter dated 17.11.1997 proposing action against illegal appointments. The respondent no.4 terminated the service of the petitioners by order dated 20.11.1997. Challenging the said termination this writ petition was filed contending that the three grounds stated in the impugned order of termination are non-existent and, therefore, the said order is liable to be quashed.

The respondents in their counter-affidavit contended that appointments were illegally made and there was no selection committee and papers relied on by the petitioners are manipulated. No requisition was sent to Employment Exchange.

The learned counsel for the petitioners contended that there were vacancies and petitioners were selected by a Selection Committee and, therefore, such appointments could not be terminated on the aforesaid grounds and in support of such contention law has been relied on as decided in the cases of Bhagwan Singh v. Mandliya Sahayak Krishi Vipnan Adhikari, Jhansi and others reported in (1993) 2 UPLBEC 1431 and Himanshu Kumar Chaturvedi v. University of Gorakhpur, Gorakhpur and others reported in (1993) 2 UPLBEC 1433.

The learned counsel for the respondents contended that appointments were without authority and there were no sanctioned posts and the entire process of appointment wan irregular and as such the petitioners are not entitled to any relief. Reliance was also placed on various law in support of contention that on such illegal appointment no right is accrued.

After considering the respective contentions, it appears that the impugned older proceeded on terminating the service of the petitioners on three grounds, namely, no post was available, no selection process was taken and violation of Regulations. Reference has been made by the respondents to the judgment and order dated 5.3.1997 in the case of Mithilesh Kumar Pandey v. State of U.P. and others (Civil Misc. Writ Petition No.41671 of 1996) decided by the Division Bench of this Court, though the said judgment did not give any direction for termination nor any finding was arrived as regards appointment of the petitioners.

From the perusal of materials available on record, I am of the opinion that apparently when names were to be obtained from Employment Exchange for filling up vacancies and when admittedly Employment Exchange did not send names of candidates for such appointments, an unusual procedure was adopted for appointing the petitioners. It was a time bound appointment for a short period in the interest of work of the Department and, therefore, such appointment need not be interfered with.

But, continuation of such appointment until regular appointment when admittedly no selection process was taken by obtaining names of willing candidates from any acceptable source in accordance with rules nor after publication of vacancies in newspapers, the same is illegal.

On behalf of the petitioners it has not been shown as to how petitioners were available for appointment and in what manner the respondents proceeded for filling vacancies. Admittedly petitioners were not referred by the Employment Exchange nor there was any advertisement in newspaper enabling willing candidates to compete. In such circumstances, appointment of some candidates from private sources in respect of permanent vacancies cannot be held to be valid. Petitioners have not shown any rule permitting such appointments.

In the absence of any such rule permitting appointment of the petitioners in the manner it has been done no right is created in favour of the petitioners for continuation.

With regard to the validity of the selection list and vailability of the posts against which petitioners were appointed on behalf of the petitioners statements have been made in support thereof and respondents have denied the same on oath. In view of the aforesaid such disputed facts cannot be decided granting any relief to the petitioners.

On such findings with regard to facts, to the law referred to by the petitioners also does not help them in obtaining any relief.

In view of the aforesaid finding, the writ petition fails and is hereby dismissed. There will be no order as to costs."

3. Thereafter, a Review Application bearing No.17768 of 1998 to review above referred order dated 03.02.1998 was filed. The said review application remained pending and this Court by an order dated 21.03.2001, after taking note that review application is pending, granted an interim order. The said order is reproduced hereinafter :-

"This writ petition was dismissed. However, a review application was filed in which notices have been issued. In similar controversy I have granted interim orders in Writ Petition No.573 of 1998. In view of this interim orders are granted against the order and terminating the petitioners services in this case also. For the details see my order of date passed in the Order sheet of Writ Petition No.573 of 1998"

4. Subsequently, on 20.02.2006, without taking note that Review Application was pending, the writ petition was dismissed in view of an order dated 20.02.2006 passed in Special Appeal No.1194 of 1999. For reference the same is reproduced hereinafter :-

" In view of the judgment and order dated 20.02.2006 passed in Special Appeal No.1194 of 1999 (Rajya Krishi Utpadan Mandi Parishad, Lucknow and Anr. Vs. Mukesh Chandra and Anr.) following Apex Court Judgment and order dated December 16, 2005 in the case of State of U.P. Vs. Neeraj Awasthi and Others, (2006) 1 Supreme Court Cases 667, this Writ Petition stands dismissed."

5. It appears that a Recall Application was filed on 27.03.2006 to recall the order dated 20.02.2006, which was allowed by an order dated 23.07.2012 and the present petition was restored to its original number. At that stage, counsel for parties have not brought into the notice of the Division Bench that review application was pending and without allowing the said review application and without reviewing the order dated 03.02.1998, the writ petition could not be restored to its original number. For reference, the order dated 23.07.2012 is reproduced hereinafter :-

"Heard counsel for the parties.

Civil Misc. Recall Application No. 273132 of 2006

This is an application filed by the petitioners praying for recall of the judgment and order dated 20.2.2006 by which order writ petition was dismissed following the judgment of this Court passed in Special Appeal No. 1194 of 1999 as well as the judgment of the Apex Court dated 16.12.2005 in the case of State of U.P. vs. Neeraj Awasthi and others.

Learned counsel for the applicant has annexed the copy of subsequent order of the Apex Court dated 19.9.2006 passed in Civil Appeal No. Nos. 7555, 7556 and 7607 (State of U.P. vs. Mukesh Kumar and others) in different IAs filed before the Apex Court. It was contended that the cases of the applicant were not covered by the Government Order dated 12.2.99 and the Court also noticed that the Apex Court in the said judgment observed that the case of those applicant be considered afresh by the High Court. Reliance has also been placed by learned counsel for the applicant on Division Bench judgment of this Court in Special Appeal No. 444 of 2005 (Rajya Krishi Utpadan Mandi Parishad vs. Rajesh Dwivedi and another) in which Special Appellate Bench remanded the matter for consideration afresh before the learned Single Judge.

The submission of learned counsel for the applicant is that the present case is not covered by the judgments of this Court as well as of the Apex Court as mentioned in the order dated 20.2.2006.

Sri Sharad Madhyan, learned counsel for the respondent submits that in any view of the matter, the matter is covered by the ratio of the judgment in the case of State of U.P. vs. Neeraj Awasthi.

The above aspect of the matter having not examined, the order dated 20.2.2006 is recalled and writ petition is restored to its original number for consideration afresh.

The application is allowed. List the writ petition before the appropriate Bench."

6. The above referred error was not pointed out by counsel of either parties even when subsequently, an Amendment Application was filed, which was allowed by an order dated 14.02.2013. Amendments were carried out in the writ petition, which was already dismissed by an order dated 03.02.1998. An application for review was pending and still not decided.

7. Learned counsel for parties on basis of above referred record have not able to deny that there is no order in review application and the same is still pending, therefore, order dated 13.02.1998, whereby present writ petiton was dismissed is still in existence, therefore, writ petition was wrongly restored to its original number.

8. In the aforesaid circumstances, since earlier, counsel for parties have not brought correct facts before this Court, therefore, order dated 23.07.2012 and subsequent orders are recalled and now the matter is heard on Review Application.

9. I have considered the above facts and conduct of Advocates of parties that true facts were not brought earlier into notice of this Court and erroneous orders were passed by this Court, therefore, no case is made out to consider the review application and accordingly, Review Application is dismissed with an observation that it was the duty of learned counsel for parties to place correct fact but they failed in discharging their respective duties.

10. The Review Application is consigned to records.

(Saurabh Shyam Shamshery,J.)

September 4, 2025

P. Pandey