Others v. Azhad Husain Naqvi

4. Heard Sri Anuj Kudesia, learned Additional Government Advocate, learned counsel appearing for the appellant and Sri Salman Abbas, learned counsel for privater respondent.

5. This intra-court appeal has been filed against the judgment and order dated

06.03.2025 passed by the Writ Court in Writ-A No.24788 of 2018 (Azhad Husain Naqvi vs. State of U.P. and another), whereby the writ petition filed by the respondent/petitioner has been allowed.

6. The facts of the case, in brief, as pointed out by Sri Anuj Kudesia, learned Additional Advocate General appearing for the appellant-State, are that the private respondent was appointed on ad-hoc basis as Junior Engineer (Civil) in the Irrigation Department on 24.04.1978. He was given some adverse entries. At some point in 1986, he claimed to have acquired the qualification of Bachelor in Civil Engineering from Aligarh Muslim University. In 1984, it is said that he claimed regularization of his services under U.P. Regularization of Ad-hoc Appointments (On Post within the purview of Public Service Commission) Rules,1979. While considering him for regularization, he was found unsuitable, accordingly in terms of provisions contained in Rules 1979, his services were terminated vide order dated 22.06.1984 which led to 2 SPLAD No. 233 of 2025 filing of the writ petition bearing No.3447 (S/S) of 1984 by him, wherein, on

24.08.1984, the termination was stayed and he was reinstated in service on 23.10.1984 and he continued to work as Junior Engineer (Civil).

7. Another writ petition bearing Writ Petition No.4555 (S/S) of 1996 was filed by the private respondent claiming promotion to the post of Assistant Engineer (Civil) under

8.33% quota meant for degree holders. It was clubbed with the earlier writ petition.

8. On 23.02.1996, the earlier writ petition bearing Writ Petition No.3447 (S/S) of 1984 wherein termination of the private respondent was issued, was dismissed for want of prosecution. Consequently, a show cause was issued to the private respondent by the appellant on 10.01.1997, pointing out the said facts, and also, as to why his services be not treated as having been terminated but, the said writ petition bearing no.3447 (S/S) of 1984 was restored on 27.02.1999, meaning thereby, the interim order also stood restored, but services of the private respondent were not reinstated. In any case, the said writ petition bearing Writ Petition No. 3447 (S/S) of 1994 relating to termination of services was allowed on 10.12.2003. Operative portion of the said judgment is quoted below:- "In view of the above, it cannot be said that there is adverse entry against the petitioner. Therefore, in view of paragraph 17 of the counter affidavit his case, is liable to be considered for reconsideration of regularization under those above rules, in case he is found fit for regularization. Since the petitioner is continuing by virtue of the interim order dated 24.08.1984 passed by this Court in writ petition no.3447 of 1984 (S/S), there is no need to issue direction for his reinstatement. In the result, the writ petition No.3447 (SS) of 1984 is allowed in part. The impugned termination order dated 22.06.1984 passed by the opp. party no.2 is hereby quashed. A writ in the nature of Mandamus is issued commanding the opp. parties to consider the case of the petitioner for regularization afresh under the existing rules and in case he is found fit for regularization on the due date, he shall be given consequential benefits of seniority, increment and consideration for further promotion in ordinary course as well as 8.33% quota meant for degree holder engineers. Since the necessary orders have been passed in writ petition no.3447 of 1984 (S/S), the writ petition No.4555 (S/S) of 1996 has become infructuous and the same is dismissed as such."

9. In view of the directions given in the writ petition No.3447 (S/S) of 1984, the court was of the view that the other petition regarding promotion had become infructuous and dismissed it accordingly as direction for consideration for promotion had already been given in the other petition. Both petitions were decided by a common judgment.

10. Against the said judgment, special appeal was filed by the appellant-State wherein no stay order was passed, in spite of it, the private respondent was not reinstated, as informed by Sri Anuj Kudesia, counsel for appellant-State, and ultimately, the special appeal was dismissed on 31.10.2017.

11. In the interregnum, the private respondent attained the age of superannuation on 3 SPLAD No. 233 of 2025

30.06.2012 but without being reinstated in compliance of the order dated 10.12.2003. Why he was not reinstated, is a question which could not be answered by the State counsel.

12. The private respondent appears to have made a representation claiming promotion and reinstatement with consequential benefits vide order dated

15.12.2017 consequent to dismissal of Special Appeal of the appellant-State bearing Special Appeal No.202 of 2020. This was declined by the order dated 09.07.2018 on the ground of termination of his services and non-reinstatement, and secondly, the claim for promotion under 8.33% quota was declined on the ground that on verification, the Bachelor's degree claimed by him was found not to have been issued by Aligarh Muslim University.

13. Against the aforesaid background, the private respondent filed writ petition bearing a Writ-A No.24788 of 2018 challenging the order dated 09.07.2018 and seeking following reliefs:- "1). To issue a writ, order or direction in the nature of Certiorari for quashing the impugned order dated 09.07.2018 contained as Annexure No.1 to the writ petition and opposite parties may be directed to regularize the services of the petitioner from the date of juniors and thereafter consder for promotion to the post of Assistant Engineer (Civil) in pay scale of Rs.15600-39100, Grade Pay of Rs.5400/- in the light of the judgment and order dated 10.12.2003 passed by Hon'ble Court in Writ Petition No.3447 (S/S) of 1984 along with Writ Petition No.4555 (S/S) of 1996 which has been affirmed by the Hon'ble Division Bench in Special Appeal No.202/2014 and thereafter allow all consequential service benefits including arrears of salary along with interest;

2.) To issue a writ, order or direction in the nature of Mandamus commanding and directing the opposite parties to pay all the pensionary benefits to the petitioner."

14. The writ Court has allowed the said writ petition. The operative portion of the impugned judgment dated 06.03.2025 reads as under:- "22. Accordingly, for the aforesaid reasons, the writ petition is allowed considering the fact that his order of termination dated 22.06.1984 has been quashed, he shall be deemed to be in service from the said date and would be entitled to all consequential benefits from the said date including regularisation and promotion from the date his junior is also promoted. The order dated 09.07.2018 is quashed with a cost of Rs. 1,00,000/- to be paid to the petitioner within a period of six weeks from the date a certified copy of this order is produced before the competent authority.

23. Let all necessary orders as directed herein-above be passed expeditiously, say, within a period of six weeks from the date a certified copy of this order is produced before the competent authority."

15. This appeal arises out of this judgment.

16. While allowing the writ petition, the writ court has found that in spite of the judgment dated 10.12.2003 in his favour, the private respondent was neither reinstated nor considered for regularization in service and he attained the age of superannuation, accordingly, it has allowed the writ petition. However, while doing so, it has failed to 4 SPLAD No. 233 of 2025 consider the plea of the State that the engineering degree being claimed by the petitioner/respondent has not been issued from Aligarh Muslim University, therefore, to this extent the judgment is erroneous and is modified by directing the State to confront the petitioner/respondent with the aforesaid fact with opportunity to respond, then if it is found that he is eligible, only then to consider him for promotion under the degree quota as per the judgment dated 10.12.2008 and the Rules applicable, unless he was also entitled to be considered for promotion in ordinary course if his junior had been so considered. However, so far as the rest of the judgment is concerned, we do not find any error. The judgment dated 10.12.2003 has attained finality between the parties, therefore, the learned Single Judge has rightly held that respondent/petitioner is deemed to have been in service since 22.06.1984, as also entitled to regularization from the date of regularization of services of his juniors as State had not denied nor refuted the factum of regularization of services of his juniors, consequently he has rightly held the respondent/petitioner to be entitled to post retiral dues.

17. Learned Single Judge has granted only 50% backwages to the private respondent which we find to be just and reasonable in the facts of this case.

18. Considering the facts of the case as noticed here-in-above, we cannot help, but say that the State has acted in a most arbitrary manner and has veritably harassed the private respondent. It is unthinkable that in spite of the Special Appeal of the State having been dismissed in 2017 and the judgment of the writ court dated 10.12.2003 having been affirmed, the private respondent was not reinstated with effect from the date of his termination of service i.e. 22.06.1984 and was not reconsidered for regularization as per Rules, especially when services of persons junior to him had been regularized in service.

19. We have gone through the order dated 09.07.2018, we do not find any consideration as to how once the order of termination of services of the private respondent was quashed by this Court vide judgment and order dated 10.12.2003, it could be said by the order dated 09.07.2018 that the services of the private respondent already stood terminated and because his services were never regularized, therefore, he is not entitled to any other service benefits, such as pay etc. and that there was no question of considering him for regularization in spite of their being a direction in this regard in the judgment dated 10.12.2003. The order is patently erroneous, illegal and in the teeth of the judgment dated 10.12.2003.

20. We have perused the judgment dated 10.12.2003, according to which, not only the termination order was quashed, but a Mandamus was issued to consider the case of the petitioner therein, who is the private respondent herein, for regularization, afresh, under the existing rules and in case, if he is found fit for regularization on the due date, he shall be given consequential benefits of seniority, increment and would be considered for further promotion in ordinary course, as well as, under 8.33% quota meant for degree holders. There is no explanation as to why this judgment was not complied. 5 SPLAD No. 233 of 2025

21. The State has treated its employee in an arbitrary manner. The writ court has been very lenient to impose a cost of only Rs.1,00,000/- we say no more.

22. In view of the above discussions, we see absolutely no reason to interfere with the impugned judgment except so far as the claim for promotion is concerned. As already observed, the judgment of the Writ Court is modified only to this extent in terms of this order and the appeal stands allowed only in part so far as claim for promotion is concerned. Rest of the judgment is sustained.

23. We are informed that contempt proceedings are already under way for non- compliance of the judgment of the writ court dated 06.03.2025. They can continue in so far as non-compliance of the directions issued by the writ court except regarding promotion.

24. We further provide that it shall be open for the private respondent to claim interest on the delayed payment of service benefits, such as, pay, arrears of pay and post retiral dues, separately, as per law. September 8, 2025 akhilesh/- (Manjive Shukla,J.) (Rajan Roy,J.) AKHILESHWAR KUMAR High Court of Judicature at Allahabad, Lucknow Bench

4. Heard Sri Anuj Kudesia, learned Additional Government Advocate, learned counsel appearing for the appellant and Sri Salman Abbas, learned counsel for privater respondent.

5. This intra-court appeal has been filed against the judgment and order dated

06.03.2025 passed by the Writ Court in Writ-A No.24788 of 2018 (Azhad Husain Naqvi vs. State of U.P. and another), whereby the writ petition filed by the respondent/petitioner has been allowed.

6. The facts of the case, in brief, as pointed out by Sri Anuj Kudesia, learned Additional Advocate General appearing for the appellant-State, are that the private respondent was appointed on ad-hoc basis as Junior Engineer (Civil) in the Irrigation Department on 24.04.1978. He was given some adverse entries. At some point in 1986, he claimed to have acquired the qualification of Bachelor in Civil Engineering from Aligarh Muslim University. In 1984, it is said that he claimed regularization of his services under U.P. Regularization of Ad-hoc Appointments (On Post within the purview of Public Service Commission) Rules,1979. While considering him for regularization, he was found unsuitable, accordingly in terms of provisions contained in Rules 1979, his services were terminated vide order dated 22.06.1984 which led to 2 SPLAD No. 233 of 2025 filing of the writ petition bearing No.3447 (S/S) of 1984 by him, wherein, on

24.08.1984, the termination was stayed and he was reinstated in service on 23.10.1984 and he continued to work as Junior Engineer (Civil).

7. Another writ petition bearing Writ Petition No.4555 (S/S) of 1996 was filed by the private respondent claiming promotion to the post of Assistant Engineer (Civil) under

8.33% quota meant for degree holders. It was clubbed with the earlier writ petition.

8. On 23.02.1996, the earlier writ petition bearing Writ Petition No.3447 (S/S) of 1984 wherein termination of the private respondent was issued, was dismissed for want of prosecution. Consequently, a show cause was issued to the private respondent by the appellant on 10.01.1997, pointing out the said facts, and also, as to why his services be not treated as having been terminated but, the said writ petition bearing no.3447 (S/S) of 1984 was restored on 27.02.1999, meaning thereby, the interim order also stood restored, but services of the private respondent were not reinstated. In any case, the said writ petition bearing Writ Petition No. 3447 (S/S) of 1994 relating to termination of services was allowed on 10.12.2003. Operative portion of the said judgment is quoted below:- "In view of the above, it cannot be said that there is adverse entry against the petitioner. Therefore, in view of paragraph 17 of the counter affidavit his case, is liable to be considered for reconsideration of regularization under those above rules, in case he is found fit for regularization. Since the petitioner is continuing by virtue of the interim order dated 24.08.1984 passed by this Court in writ petition no.3447 of 1984 (S/S), there is no need to issue direction for his reinstatement. In the result, the writ petition No.3447 (SS) of 1984 is allowed in part. The impugned termination order dated 22.06.1984 passed by the opp. party no.2 is hereby quashed. A writ in the nature of Mandamus is issued commanding the opp. parties to consider the case of the petitioner for regularization afresh under the existing rules and in case he is found fit for regularization on the due date, he shall be given consequential benefits of seniority, increment and consideration for further promotion in ordinary course as well as 8.33% quota meant for degree holder engineers. Since the necessary orders have been passed in writ petition no.3447 of 1984 (S/S), the writ petition No.4555 (S/S) of 1996 has become infructuous and the same is dismissed as such."

9. In view of the directions given in the writ petition No.3447 (S/S) of 1984, the court was of the view that the other petition regarding promotion had become infructuous and dismissed it accordingly as direction for consideration for promotion had already been given in the other petition. Both petitions were decided by a common judgment.

10. Against the said judgment, special appeal was filed by the appellant-State wherein no stay order was passed, in spite of it, the private respondent was not reinstated, as informed by Sri Anuj Kudesia, counsel for appellant-State, and ultimately, the special appeal was dismissed on 31.10.2017.

11. In the interregnum, the private respondent attained the age of superannuation on 3 SPLAD No. 233 of 2025

30.06.2012 but without being reinstated in compliance of the order dated 10.12.2003. Why he was not reinstated, is a question which could not be answered by the State counsel.

12. The private respondent appears to have made a representation claiming promotion and reinstatement with consequential benefits vide order dated

15.12.2017 consequent to dismissal of Special Appeal of the appellant-State bearing Special Appeal No.202 of 2020. This was declined by the order dated 09.07.2018 on the ground of termination of his services and non-reinstatement, and secondly, the claim for promotion under 8.33% quota was declined on the ground that on verification, the Bachelor's degree claimed by him was found not to have been issued by Aligarh Muslim University.

13. Against the aforesaid background, the private respondent filed writ petition bearing a Writ-A No.24788 of 2018 challenging the order dated 09.07.2018 and seeking following reliefs:- "1). To issue a writ, order or direction in the nature of Certiorari for quashing the impugned order dated 09.07.2018 contained as Annexure No.1 to the writ petition and opposite parties may be directed to regularize the services of the petitioner from the date of juniors and thereafter consder for promotion to the post of Assistant Engineer (Civil) in pay scale of Rs.15600-39100, Grade Pay of Rs.5400/- in the light of the judgment and order dated 10.12.2003 passed by Hon'ble Court in Writ Petition No.3447 (S/S) of 1984 along with Writ Petition No.4555 (S/S) of 1996 which has been affirmed by the Hon'ble Division Bench in Special Appeal No.202/2014 and thereafter allow all consequential service benefits including arrears of salary along with interest;

2.) To issue a writ, order or direction in the nature of Mandamus commanding and directing the opposite parties to pay all the pensionary benefits to the petitioner."

14. The writ Court has allowed the said writ petition. The operative portion of the impugned judgment dated 06.03.2025 reads as under:- "22. Accordingly, for the aforesaid reasons, the writ petition is allowed considering the fact that his order of termination dated 22.06.1984 has been quashed, he shall be deemed to be in service from the said date and would be entitled to all consequential benefits from the said date including regularisation and promotion from the date his junior is also promoted. The order dated 09.07.2018 is quashed with a cost of Rs. 1,00,000/- to be paid to the petitioner within a period of six weeks from the date a certified copy of this order is produced before the competent authority.

23. Let all necessary orders as directed herein-above be passed expeditiously, say, within a period of six weeks from the date a certified copy of this order is produced before the competent authority."

15. This appeal arises out of this judgment.

16. While allowing the writ petition, the writ court has found that in spite of the judgment dated 10.12.2003 in his favour, the private respondent was neither reinstated nor considered for regularization in service and he attained the age of superannuation, accordingly, it has allowed the writ petition. However, while doing so, it has failed to 4 SPLAD No. 233 of 2025 consider the plea of the State that the engineering degree being claimed by the petitioner/respondent has not been issued from Aligarh Muslim University, therefore, to this extent the judgment is erroneous and is modified by directing the State to confront the petitioner/respondent with the aforesaid fact with opportunity to respond, then if it is found that he is eligible, only then to consider him for promotion under the degree quota as per the judgment dated 10.12.2008 and the Rules applicable, unless he was also entitled to be considered for promotion in ordinary course if his junior had been so considered. However, so far as the rest of the judgment is concerned, we do not find any error. The judgment dated 10.12.2003 has attained finality between the parties, therefore, the learned Single Judge has rightly held that respondent/petitioner is deemed to have been in service since 22.06.1984, as also entitled to regularization from the date of regularization of services of his juniors as State had not denied nor refuted the factum of regularization of services of his juniors, consequently he has rightly held the respondent/petitioner to be entitled to post retiral dues.

17. Learned Single Judge has granted only 50% backwages to the private respondent which we find to be just and reasonable in the facts of this case.

18. Considering the facts of the case as noticed here-in-above, we cannot help, but say that the State has acted in a most arbitrary manner and has veritably harassed the private respondent. It is unthinkable that in spite of the Special Appeal of the State having been dismissed in 2017 and the judgment of the writ court dated 10.12.2003 having been affirmed, the private respondent was not reinstated with effect from the date of his termination of service i.e. 22.06.1984 and was not reconsidered for regularization as per Rules, especially when services of persons junior to him had been regularized in service.

19. We have gone through the order dated 09.07.2018, we do not find any consideration as to how once the order of termination of services of the private respondent was quashed by this Court vide judgment and order dated 10.12.2003, it could be said by the order dated 09.07.2018 that the services of the private respondent already stood terminated and because his services were never regularized, therefore, he is not entitled to any other service benefits, such as pay etc. and that there was no question of considering him for regularization in spite of their being a direction in this regard in the judgment dated 10.12.2003. The order is patently erroneous, illegal and in the teeth of the judgment dated 10.12.2003.

20. We have perused the judgment dated 10.12.2003, according to which, not only the termination order was quashed, but a Mandamus was issued to consider the case of the petitioner therein, who is the private respondent herein, for regularization, afresh, under the existing rules and in case, if he is found fit for regularization on the due date, he shall be given consequential benefits of seniority, increment and would be considered for further promotion in ordinary course, as well as, under 8.33% quota meant for degree holders. There is no explanation as to why this judgment was not complied. 5 SPLAD No. 233 of 2025

21. The State has treated its employee in an arbitrary manner. The writ court has been very lenient to impose a cost of only Rs.1,00,000/- we say no more.

22. In view of the above discussions, we see absolutely no reason to interfere with the impugned judgment except so far as the claim for promotion is concerned. As already observed, the judgment of the Writ Court is modified only to this extent in terms of this order and the appeal stands allowed only in part so far as claim for promotion is concerned. Rest of the judgment is sustained.

23. We are informed that contempt proceedings are already under way for non- compliance of the judgment of the writ court dated 06.03.2025. They can continue in so far as non-compliance of the directions issued by the writ court except regarding promotion.

24. We further provide that it shall be open for the private respondent to claim interest on the delayed payment of service benefits, such as, pay, arrears of pay and post retiral dues, separately, as per law. September 8, 2025 akhilesh/- (Manjive Shukla,J.) (Rajan Roy,J.) AKHILESHWAR KUMAR High Court of Judicature at Allahabad, Lucknow Bench