Ajay Kumar Tewari v. State Cane Service Authority and others before this Court. The said writ petit

5. Learned counsel for the petitioner states that the petitioner has been working as a Seasonal Clerk since the year

2007. Considering his long period of service and finding himself eligible for being regularized, the petitioner filed Writ Petition No. 27201 of 2016 in re: Ajay Kumar Tewari vs State Cane Service Authority and others before this Court. The said writ petition was disposed of with a direction to the competent authority to consider the representation of the petitioner in accordance with law with regard to his consideration for promotion to the post of permanent Clerk / Driver. In pursuance thereof the order impugned has been passed.

6. The argument of learned counsel for the petitioner is that the proviso to Regulation 40 of the U.P. Cane Co-operative Service Regulations, 1975 (hereinafter referred to as Regulations 1975) categorically provides that 50% of the seasonal staffs shall be taken for regular employment on the cane unions provided they fulfill the prescribed qualification and are otherwise also found suitable for the aforesaid posts, provided further that each member of seasonal staff must have put five years or more of continuous service.

7. The contention of learned counsel for the petitioner is that once the proviso to Regulation 40 of the Regulation 1975 categorically provides for seasonal staff to be taken in regular employment of the cane union provided they fulfill the prescribed qualification and are otherwise found suitable for the post and the qualification as prescribed for the post of Driver is 10th pass, as has categorically been stated by the respondents in their supplementary affidavit dated 11.07.2025 placing reliance on the U.P. Government Department Driver Service Rules, 1993 (hereinafter referred to Rules, 1993) Rule 11 which indicates the qualification as 8th examination and a preferential qualification as high school and thus once admittedly the petitioner has got the qualification of being high school pass as indicated in paragraph 3 of the supplementary affidavit dated

11.07.2025 consequently there was no occasion for the respondents to have rejected the claim of the petitioner for regular appointment on the post of Driver.

8. Responding Shri Asthana, learned standing counsel for the respondents has argued that (a) Regulation 40 of Regulations 1975 would only be applicable for direct recruitment and the petitioner does not fulfill the age qualification in as much he is overaged for appointment on the post of driver, (b) there is no post of driver available in the society neither any regular sanctioned post is available nor any vehicle is available (c) there is no post of driver created by competent authority, (d) there is no provision of regularisation of seasonal clerk on the post of driver and (e) the persons with whom parity has been sought by the petitioner all were working as daily wagers and have been regularized on the post of Driver.

9. No other ground has been taken.

10. Having heard learned counsel for the parties and having perused the record it emerges that admittedly the petitioner has been working as seasonal clerk since 2007. He staked his claim for being considered for appointment / regularisation on the post of permanent clerk / driver which has been rejected vide order impugned dated 23.01.2017.

11. The only reason which emerges from perusal of the order impugned for non regularizing of the petitioner on the post of Driver is that a seasonal clerk is not eligible for being appointed/ regularized on the post of Driver.

12. Regulation 40 of Regulation 1975 reads as under: "40. Appointments and Promotions. All appointments or promotions shall be made strictly in accordance with list and in the order prepared by the Recruiting and Appointing Authority concerned at the time of selection either by direct recruitment or by preferment from the lower rank as the case may be. Fifty percent of the seasonal staff shall be taken in regular employment of the cane unions provided they fulfil the prescribed qualification and are otherwise also found suitable for the post, provided further that each member of the seasonal staff must have put in five years or more continuous service."

13. From perusal of Regulation 40 of Regulations 1975 it clearly emerges that all appointments / promotions have to be made strictly in accordance with the list and an order prepared by the recruiting or appointing authority. However in terms of proviso it is provided that 50 % of seasonal staff shall be taken on regular employment of cane unions provided they fulfill prescribed qualification and otherwise are also found suitable for the post provided further that each member of the seasonal staff must have put five years or more continuous service.

14. The aforesaid proviso does not restraint or restrict a seasonal clerk to be appointed or regularized on the post of Driver. The only word used in Regulation 40 is “seasonal staff” without differentiating between either Clerk or Driver. Admittedly the petitioner has been working as seasonal clerk since the year 2007 and thus has put in more than five years of service which is the requisite number of service as required under the provisions of Regulation 40 of Regulation 1975. The Regulation 40 also indicates that 50% of seasonal staff have to be taken in regular employment without restricting the posts on which such seasonal staff is to be taken meaning thereby there is no bar in seasonal clerk being taken in regular appointment on the post of driver as has been indicated by the respondents in the order impugned.

15. The grounds taken by the respondents that the petitioner is not qualified for being regularized on the post of driver is found to be patently misconceived considering the averments made in supplementary affidavit dated 11.07.2025 which has been filed by the respondent wherein in paragraphs 3 and 4 it has been categorically stated about qualification of the petitioner vis a vis the qualification which is required for the post of driver as per rules from which it emerges that the petitioner in the capacity of being a high school pass is fully eligible for being regularized on the post of driver.

16. So far as grounds (a) to (e) as have been taken by the respondents, the same may not detain the Court in as much as the said grounds do not find place in the order impugned.

17. It is settled position of law as held by the Hon'ble Supreme Court in the case of Mohinder Singh Gill and another vs the Chief Election Commissioner, New Delhi and another, AIR 1978 AIR 851 that the authorities cannot be allowed to indicate those grounds by means of an affidavit which has not been taken in order impugned.

18. For the sake of convenience, the relevant observations of the Hon'ble Supreme Court in the case of Mohinder Singh Gill (supra) is reproduced below: "8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out."

19. Considering the aforesaid, it is apparent that the respondents have passed the order impugned with patent non-application of mind. Accordingly, the Writ Petition is allowed. The order dated

23.01.2017, a copy of which is annexure 1 to the writ petition, is quashed. The competent authority is directed to consider the claim of the petitioner for regularisation on the post of Driver keeping in view the discussion made above.

20. Let such consideration be made within a period of six weeks form the date of receipt of a certified copy of this order. Order Date :- 21.7.2025 J. K. Dinkar JESHU KUMAR DINKAR High Court of Judicature at Allahabad, Lucknow Bench

5. Learned counsel for the petitioner states that the petitioner has been working as a Seasonal Clerk since the year

2007. Considering his long period of service and finding himself eligible for being regularized, the petitioner filed Writ Petition No. 27201 of 2016 in re: Ajay Kumar Tewari vs State Cane Service Authority and others before this Court. The said writ petition was disposed of with a direction to the competent authority to consider the representation of the petitioner in accordance with law with regard to his consideration for promotion to the post of permanent Clerk / Driver. In pursuance thereof the order impugned has been passed.

6. The argument of learned counsel for the petitioner is that the proviso to Regulation 40 of the U.P. Cane Co-operative Service Regulations, 1975 (hereinafter referred to as Regulations 1975) categorically provides that 50% of the seasonal staffs shall be taken for regular employment on the cane unions provided they fulfill the prescribed qualification and are otherwise also found suitable for the aforesaid posts, provided further that each member of seasonal staff must have put five years or more of continuous service.

7. The contention of learned counsel for the petitioner is that once the proviso to Regulation 40 of the Regulation 1975 categorically provides for seasonal staff to be taken in regular employment of the cane union provided they fulfill the prescribed qualification and are otherwise found suitable for the post and the qualification as prescribed for the post of Driver is 10th pass, as has categorically been stated by the respondents in their supplementary affidavit dated 11.07.2025 placing reliance on the U.P. Government Department Driver Service Rules, 1993 (hereinafter referred to Rules, 1993) Rule 11 which indicates the qualification as 8th examination and a preferential qualification as high school and thus once admittedly the petitioner has got the qualification of being high school pass as indicated in paragraph 3 of the supplementary affidavit dated

11.07.2025 consequently there was no occasion for the respondents to have rejected the claim of the petitioner for regular appointment on the post of Driver.

8. Responding Shri Asthana, learned standing counsel for the respondents has argued that (a) Regulation 40 of Regulations 1975 would only be applicable for direct recruitment and the petitioner does not fulfill the age qualification in as much he is overaged for appointment on the post of driver, (b) there is no post of driver available in the society neither any regular sanctioned post is available nor any vehicle is available (c) there is no post of driver created by competent authority, (d) there is no provision of regularisation of seasonal clerk on the post of driver and (e) the persons with whom parity has been sought by the petitioner all were working as daily wagers and have been regularized on the post of Driver.

9. No other ground has been taken.

10. Having heard learned counsel for the parties and having perused the record it emerges that admittedly the petitioner has been working as seasonal clerk since 2007. He staked his claim for being considered for appointment / regularisation on the post of permanent clerk / driver which has been rejected vide order impugned dated 23.01.2017.

11. The only reason which emerges from perusal of the order impugned for non regularizing of the petitioner on the post of Driver is that a seasonal clerk is not eligible for being appointed/ regularized on the post of Driver.

12. Regulation 40 of Regulation 1975 reads as under: "40. Appointments and Promotions. All appointments or promotions shall be made strictly in accordance with list and in the order prepared by the Recruiting and Appointing Authority concerned at the time of selection either by direct recruitment or by preferment from the lower rank as the case may be. Fifty percent of the seasonal staff shall be taken in regular employment of the cane unions provided they fulfil the prescribed qualification and are otherwise also found suitable for the post, provided further that each member of the seasonal staff must have put in five years or more continuous service."

13. From perusal of Regulation 40 of Regulations 1975 it clearly emerges that all appointments / promotions have to be made strictly in accordance with the list and an order prepared by the recruiting or appointing authority. However in terms of proviso it is provided that 50 % of seasonal staff shall be taken on regular employment of cane unions provided they fulfill prescribed qualification and otherwise are also found suitable for the post provided further that each member of the seasonal staff must have put five years or more continuous service.

14. The aforesaid proviso does not restraint or restrict a seasonal clerk to be appointed or regularized on the post of Driver. The only word used in Regulation 40 is “seasonal staff” without differentiating between either Clerk or Driver. Admittedly the petitioner has been working as seasonal clerk since the year 2007 and thus has put in more than five years of service which is the requisite number of service as required under the provisions of Regulation 40 of Regulation 1975. The Regulation 40 also indicates that 50% of seasonal staff have to be taken in regular employment without restricting the posts on which such seasonal staff is to be taken meaning thereby there is no bar in seasonal clerk being taken in regular appointment on the post of driver as has been indicated by the respondents in the order impugned.

15. The grounds taken by the respondents that the petitioner is not qualified for being regularized on the post of driver is found to be patently misconceived considering the averments made in supplementary affidavit dated 11.07.2025 which has been filed by the respondent wherein in paragraphs 3 and 4 it has been categorically stated about qualification of the petitioner vis a vis the qualification which is required for the post of driver as per rules from which it emerges that the petitioner in the capacity of being a high school pass is fully eligible for being regularized on the post of driver.

16. So far as grounds (a) to (e) as have been taken by the respondents, the same may not detain the Court in as much as the said grounds do not find place in the order impugned.

17. It is settled position of law as held by the Hon'ble Supreme Court in the case of Mohinder Singh Gill and another vs the Chief Election Commissioner, New Delhi and another, AIR 1978 AIR 851 that the authorities cannot be allowed to indicate those grounds by means of an affidavit which has not been taken in order impugned.

18. For the sake of convenience, the relevant observations of the Hon'ble Supreme Court in the case of Mohinder Singh Gill (supra) is reproduced below: "8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out."

19. Considering the aforesaid, it is apparent that the respondents have passed the order impugned with patent non-application of mind. Accordingly, the Writ Petition is allowed. The order dated

23.01.2017, a copy of which is annexure 1 to the writ petition, is quashed. The competent authority is directed to consider the claim of the petitioner for regularisation on the post of Driver keeping in view the discussion made above.

20. Let such consideration be made within a period of six weeks form the date of receipt of a certified copy of this order. Order Date :- 21.7.2025 J. K. Dinkar JESHU KUMAR DINKAR High Court of Judicature at Allahabad, Lucknow Bench