High Court · 2025
Case Details
Appellant :- State Of U.P. Thru Prin. Secy. Home And 8 Ors. Respondent :- Brijesh Kumar Pandey S/S 4331/2005 Counsel for Appellant :- Standing Counsel Counsel for Respondent :- Dr. L.P. Mishra,Nandini Pandey,Sri Aprove Tewari.,Sri Shobhit Kumar. Case :- SPECIAL APPEAL DEFECTIVE No. - 221 of 2025 Appellant :- State Of U.P. Thru. Secy. Home Deptt. Lko And 5 Others Respondent :- Brijesh Kumar Pandey Counsel for Appellant :- C.S.C. Counsel for Respondent :- Lalta Prasad Misra Hon'ble Rajan Roy,J. Hon'ble Manish Kumar,J. (C.M.A. No. 5820 of 2008 in Special Appeal (Defective) No. 38 of 2008) Counsel for the respondent does not object to condonation of delay. The same is not inordinate and has been explained. We therefore, allow the application for condonation of delay. Delay is hereby condoned. (C.M.A. No. 1 of 2025 in Special Appeal (Defective) No. 221 of 2025) Counsel for the respondent does not object to condonation of delay. The same is not inordinate and has been explained. We therefore, allow the application for condonation of delay. Delay is hereby condoned. (Order on special appeals) Heard. After hearing learned counsel for the appellants and Dr. L.P. Mishra, learned counsel for the respondent assisted by Mrs. Nandini Pandey & Ms. Annapurna Agnihotri, Advocates, what comes out is that the respondent in these two appeals had appeared in a selection for recruitment to the post of Police Constable in State of U.P. At that time, the respondent was not found fulfilling the physical measurements. However, the State Government issued a Government Order dated 15.06.1994 addressed to the Chief Medical Officer, Lucknow to get the respondent medically examined again. The medical examination took place wherein the physical measurements of the respondent were found to be as per rules of recruitment. The said certificate of the Chief Medical Officer, Lucknow is on record. The counsel for the appellant-State submits that the medical re-examination, if at all it was to take place, should have taken place before the Chief Medical Officer, Sitapur where the recruitment was being held, however, on being confronted with Government Order dated 15.06.1994 whereby the Home Department, State of U.P. itself directed the Chief Medical Officer, Lucknow to undertake the said exercise, he submitted that in-fact the father of the respondent was in Government Service on the post of Section Officer, Home Department, Government of U.P. and it was he, who exercised his influence to get the Government Order issued and ultimately an F.I.R. was lodged in this regard in the year 2009, however, on being further asked as to what happened after lodging of the F.I.R., he fairly submitted that nothing has happened. We further asked him as to whether any departmental enquiry was conducted regarding issuance of the said government order, he replied in the negative. Dr. L.P. Mishra, learned counsel for the respondent says that at no point of time in any of writ petitions, the plea that government orders issued in favour of the respondent from time to time were forged or fabricated or under the influence of the father of respondent was taken. Fact remains that as of now, there is no adjudication by any Court or authority that the said Government Order dated 15.06.1994 was either forged or fabricated or that it had not been issued as per rules nor is there any adjudication with regard to the other documents/orders dated 28.06.1994, 27.11.1994 and 22.03.2003 issued by the State Government referred in the judgment dated 12.04.2006 passed in Writ Petition No. 4331 (S/S) of 2005 filed by the respondent out of which Special Appeal (Defective) No. 38 of 2000 (present petition) arises, by which State Government is said to have directed the concerned officers to appoint and send the respondent on training. Be that as it may, inspite of the certificate of the C.M.O., Lucknow finding the respondent fulfilling physical criteria for recruitment and inspite of Government Orders issued on 28.06.1994, 27.11.1994 and 22.03.2003 for his appointment and training, the same was never done, which led to filing of several writ petitions by the respondent, details of which have been mentioned in the judgment referred hereinabove dated 12.04.2006, such as Writ Petition No. 6143 (S/S) of 2003, which was disposed of with a direction to the respondents therein to decide the representation but this order was also not complied in right perspective as observed by the learned Single Judge, which led to filing of another writ petition bearing no. 1423 (S/S) of 2005, which was allowed on 21.02.2005 setting aside some orders which had been passed against the respondents in this regard. Even thereafter, nothing was done, which led to filing of a contempt petition before this Court bearing no. 835 (C) of 2005 and then an order was passed on 08.04.2005 which was impugned in the writ petition bearing no. 4331 (S/S) of 2005, which has been allowed on 12.04.2006 on the ground that inspite of several orders of the Government, the respondent was denied appointment illegally. When the judgment dated 12.04.2006 was not complied, another contempt petition bearing Criminal Miscellaneous Case No. 2633 (6) of 2006 was filed by the respondent. After initiation of contempt proceedings on account of non compliance of judgment dated 12.04.2006, the respondent was offered appointment on the post of Constable but only w.e.f. 2013. Ever since 2013, he is working as Police Constable. The judgment dated 12.04.2006 is impugned in Special Appeal No. 38 of 2008. Having gone through the judgment and order dated 12.04.2006, we do not find any error therein. Being aggrieved by his appointment only w.e.f 2013, another writ petition bearing Writ A No. 9577 of 2006 was filed by the respondent before this Court challenging the said order, which has been allowed by a detailed judgment on 20.08.2024. The operative portion of which reads as under :- "36. On due consideration of overall facts and circumstances of the case, the Court is of the view that the impugned order is not sustainable in the eyes of law and are liable to be set aside. Accordingly, the impugned order dated 25.07.2006 is hereby set aside.
37. In view of peculiar facts and circumstances of the case, respondents are directed to pay a cost of Rs.3,00,000/- (Rupees Three Lakhs Only) to the petitioner within three months from today. However, the petitioner be treated in service as Constable from the date from which the selectees of 1994 recruits of district Sitapur as Constable have been appointed as Constables with all consequential benefits of continuance in service, fixation of pay, seniority and promotion etc. It is further provided that pay of the petitioner should be fixed, calculated and refixed on the basis of revised scale of pay as made from time to time. Consequent to fixation, calculation and re-fixation as aforesaid, the petitioner be paid arrears of salary w.e.f. 12.04.2006, the date of judgment of this Court in Writ Petition No.4331 (S/S) of 2005. The petitioner be also given promotions against the quota of promotion to the next higher posts from the date, the Constable recruited after 1994 have been promoted.
38. With the aforesaid observation and direction, the writ petition succeeds and is allowed." The learned Single Judge has noticed the history of the case right from the year 1994 and whatever has happened in the interregnum including the issuance of various government orders, medical re-examination of the respondent by C.M.O., Lucknow in pursuance of the orders of the Government, directions issued in various writ petitions and their non- compliance and thereafter he has opined that appellant herein has acted illegally in denying the respondent his right of appointment to the post of Constable w.e.f. 1994, accordingly, the aforesaid benefits have been given. Inspite of judgment and order dated 20.08.2024, the same was not complied with, which led to a third round of litigation in the form of contempt proceedings bearing no. 1059 of 2025, which is posted tomorrow before the Contempt Court. The judgment dated 20.08.2024 is under challenge in Special Appeal No. 221 of 2025. The appellant counsel raised only one point that inspite of respondent having been given appointment since the year 2013, the learned Single Judge vide judgment dated 20.08.2024 has erred in granting him appointment w.e.f. 1994 with all consequential benefit although he had not worked, however, the facts and circumstances of the present case reveal that it is the appellant, who did not allow him to work, therefore, it is not open to the appellant to take this plea. One cannot take benefit of one's own wrong. Had the petitioner being appointed in 1994 or prior to 01.04.2005, he would be entitled to pensionary benefits. It is only on account of apathy of the appellants that respondent has been denied his rights. At this stage, Shri Mohit Jauhari, learned Additional Chief Standing Counsel for the State submitted that so far as promotions after 1994 but prior to 2006 are concerned, the same may be made notionally to which Dr. L.P. Mishra, learned counsel for the respondent does not have any objection. It is accordingly ordered that promotion, if any, to which the respondent would be entitled during period 1994 till 2006 shall only be Notional Promotion with consequential benefits as ordered by learned Single Judge. The judgment of learned Single Judge dated 20.08.2024 passed in Writ A No. 9577 of 2006 stands clarified/modified accordingly. Subject to above, the appeals are dismissed. [Manish Kumar, J.] [Rajan Roy,J] Order Date :- 6.8.2025 Ashish ASHISH MISHRA High Court of Judicature at Allahabad, Lucknow Bench
Appellant :- State Of U.P. Thru Prin. Secy. Home And 8 Ors. Respondent :- Brijesh Kumar Pandey S/S 4331/2005 Counsel for Appellant :- Standing Counsel Counsel for Respondent :- Dr. L.P. Mishra,Nandini Pandey,Sri Aprove Tewari.,Sri Shobhit Kumar. Case :- SPECIAL APPEAL DEFECTIVE No. - 221 of 2025 Appellant :- State Of U.P. Thru. Secy. Home Deptt. Lko And 5 Others Respondent :- Brijesh Kumar Pandey Counsel for Appellant :- C.S.C. Counsel for Respondent :- Lalta Prasad Misra Hon'ble Rajan Roy,J. Hon'ble Manish Kumar,J. (C.M.A. No. 5820 of 2008 in Special Appeal (Defective) No. 38 of 2008) Counsel for the respondent does not object to condonation of delay. The same is not inordinate and has been explained. We therefore, allow the application for condonation of delay. Delay is hereby condoned. (C.M.A. No. 1 of 2025 in Special Appeal (Defective) No. 221 of 2025) Counsel for the respondent does not object to condonation of delay. The same is not inordinate and has been explained. We therefore, allow the application for condonation of delay. Delay is hereby condoned. (Order on special appeals) Heard. After hearing learned counsel for the appellants and Dr. L.P. Mishra, learned counsel for the respondent assisted by Mrs. Nandini Pandey & Ms. Annapurna Agnihotri, Advocates, what comes out is that the respondent in these two appeals had appeared in a selection for recruitment to the post of Police Constable in State of U.P. At that time, the respondent was not found fulfilling the physical measurements. However, the State Government issued a Government Order dated 15.06.1994 addressed to the Chief Medical Officer, Lucknow to get the respondent medically examined again. The medical examination took place wherein the physical measurements of the respondent were found to be as per rules of recruitment. The said certificate of the Chief Medical Officer, Lucknow is on record. The counsel for the appellant-State submits that the medical re-examination, if at all it was to take place, should have taken place before the Chief Medical Officer, Sitapur where the recruitment was being held, however, on being confronted with Government Order dated 15.06.1994 whereby the Home Department, State of U.P. itself directed the Chief Medical Officer, Lucknow to undertake the said exercise, he submitted that in-fact the father of the respondent was in Government Service on the post of Section Officer, Home Department, Government of U.P. and it was he, who exercised his influence to get the Government Order issued and ultimately an F.I.R. was lodged in this regard in the year 2009, however, on being further asked as to what happened after lodging of the F.I.R., he fairly submitted that nothing has happened. We further asked him as to whether any departmental enquiry was conducted regarding issuance of the said government order, he replied in the negative. Dr. L.P. Mishra, learned counsel for the respondent says that at no point of time in any of writ petitions, the plea that government orders issued in favour of the respondent from time to time were forged or fabricated or under the influence of the father of respondent was taken. Fact remains that as of now, there is no adjudication by any Court or authority that the said Government Order dated 15.06.1994 was either forged or fabricated or that it had not been issued as per rules nor is there any adjudication with regard to the other documents/orders dated 28.06.1994, 27.11.1994 and 22.03.2003 issued by the State Government referred in the judgment dated 12.04.2006 passed in Writ Petition No. 4331 (S/S) of 2005 filed by the respondent out of which Special Appeal (Defective) No. 38 of 2000 (present petition) arises, by which State Government is said to have directed the concerned officers to appoint and send the respondent on training. Be that as it may, inspite of the certificate of the C.M.O., Lucknow finding the respondent fulfilling physical criteria for recruitment and inspite of Government Orders issued on 28.06.1994, 27.11.1994 and 22.03.2003 for his appointment and training, the same was never done, which led to filing of several writ petitions by the respondent, details of which have been mentioned in the judgment referred hereinabove dated 12.04.2006, such as Writ Petition No. 6143 (S/S) of 2003, which was disposed of with a direction to the respondents therein to decide the representation but this order was also not complied in right perspective as observed by the learned Single Judge, which led to filing of another writ petition bearing no. 1423 (S/S) of 2005, which was allowed on 21.02.2005 setting aside some orders which had been passed against the respondents in this regard. Even thereafter, nothing was done, which led to filing of a contempt petition before this Court bearing no. 835 (C) of 2005 and then an order was passed on 08.04.2005 which was impugned in the writ petition bearing no. 4331 (S/S) of 2005, which has been allowed on 12.04.2006 on the ground that inspite of several orders of the Government, the respondent was denied appointment illegally. When the judgment dated 12.04.2006 was not complied, another contempt petition bearing Criminal Miscellaneous Case No. 2633 (6) of 2006 was filed by the respondent. After initiation of contempt proceedings on account of non compliance of judgment dated 12.04.2006, the respondent was offered appointment on the post of Constable but only w.e.f. 2013. Ever since 2013, he is working as Police Constable. The judgment dated 12.04.2006 is impugned in Special Appeal No. 38 of 2008. Having gone through the judgment and order dated 12.04.2006, we do not find any error therein. Being aggrieved by his appointment only w.e.f 2013, another writ petition bearing Writ A No. 9577 of 2006 was filed by the respondent before this Court challenging the said order, which has been allowed by a detailed judgment on 20.08.2024. The operative portion of which reads as under :- "36. On due consideration of overall facts and circumstances of the case, the Court is of the view that the impugned order is not sustainable in the eyes of law and are liable to be set aside. Accordingly, the impugned order dated 25.07.2006 is hereby set aside.
37. In view of peculiar facts and circumstances of the case, respondents are directed to pay a cost of Rs.3,00,000/- (Rupees Three Lakhs Only) to the petitioner within three months from today. However, the petitioner be treated in service as Constable from the date from which the selectees of 1994 recruits of district Sitapur as Constable have been appointed as Constables with all consequential benefits of continuance in service, fixation of pay, seniority and promotion etc. It is further provided that pay of the petitioner should be fixed, calculated and refixed on the basis of revised scale of pay as made from time to time. Consequent to fixation, calculation and re-fixation as aforesaid, the petitioner be paid arrears of salary w.e.f. 12.04.2006, the date of judgment of this Court in Writ Petition No.4331 (S/S) of 2005. The petitioner be also given promotions against the quota of promotion to the next higher posts from the date, the Constable recruited after 1994 have been promoted.
38. With the aforesaid observation and direction, the writ petition succeeds and is allowed." The learned Single Judge has noticed the history of the case right from the year 1994 and whatever has happened in the interregnum including the issuance of various government orders, medical re-examination of the respondent by C.M.O., Lucknow in pursuance of the orders of the Government, directions issued in various writ petitions and their non- compliance and thereafter he has opined that appellant herein has acted illegally in denying the respondent his right of appointment to the post of Constable w.e.f. 1994, accordingly, the aforesaid benefits have been given. Inspite of judgment and order dated 20.08.2024, the same was not complied with, which led to a third round of litigation in the form of contempt proceedings bearing no. 1059 of 2025, which is posted tomorrow before the Contempt Court. The judgment dated 20.08.2024 is under challenge in Special Appeal No. 221 of 2025. The appellant counsel raised only one point that inspite of respondent having been given appointment since the year 2013, the learned Single Judge vide judgment dated 20.08.2024 has erred in granting him appointment w.e.f. 1994 with all consequential benefit although he had not worked, however, the facts and circumstances of the present case reveal that it is the appellant, who did not allow him to work, therefore, it is not open to the appellant to take this plea. One cannot take benefit of one's own wrong. Had the petitioner being appointed in 1994 or prior to 01.04.2005, he would be entitled to pensionary benefits. It is only on account of apathy of the appellants that respondent has been denied his rights. At this stage, Shri Mohit Jauhari, learned Additional Chief Standing Counsel for the State submitted that so far as promotions after 1994 but prior to 2006 are concerned, the same may be made notionally to which Dr. L.P. Mishra, learned counsel for the respondent does not have any objection. It is accordingly ordered that promotion, if any, to which the respondent would be entitled during period 1994 till 2006 shall only be Notional Promotion with consequential benefits as ordered by learned Single Judge. The judgment of learned Single Judge dated 20.08.2024 passed in Writ A No. 9577 of 2006 stands clarified/modified accordingly. Subject to above, the appeals are dismissed. [Manish Kumar, J.] [Rajan Roy,J] Order Date :- 6.8.2025 Ashish ASHISH MISHRA High Court of Judicature at Allahabad, Lucknow Bench