Allahabad High Court · 2025

annexure-3 to the writ petition.

4. Though the complete appointment order has not been annexed by the petitioner, yet a copy of the same has been annexed by Sri Neerav Chitravanshi, learned counsel appearing for the respondents No.2 to 5, in the counter afÏdavit as Annexure-CA 3.

5. Perusal of the terms and conditions of the appointment would indicate that the petitioner was to be on training for a period of twelve months, which training could be extended for a further period of twelve months. During the said training period, the petitioner was to appear in a qualifying examination, and in case he was to succeed in the said examination, he would be appointed as an Assistant Engineer. Two examinations were permitted during the aforesaid training period, and in case a person did not qualify in the said examination, his training would be terminated. It is contended that on account of severe medical condition, the petitioner could not continue the training with effect from 24.02.2013 till 04.08.2014. Thereafter, he was permitted to join back by the Corporation on

23.06.2015, again as a Trainee.

6. The matter pertaining to the unauthorized absence of the petitioner for the aforesaid period, i.e.,

24.02.2013 to 04.08.2014, was inquired into by the Corporation. The Superintendent of Police (Vigilance) submitted his report dated 08.09.2015, a copy of which is annexure-16 to the writ petition, from which it emerges that the petitioner was suffering from Pulmonary Tuberculosis, and thus a recommendation was made that the period of absence of the petitioner from 26.02.2013 to 01.08.2014 can be regularized on the basis of the medical certificates, and the remaining period could be treated as having been spent for travelling, etc.

7. Subsequent thereto, vide the order impugned dated

28.02.2018, copy of which is Annexure-1 to the writ petition, the petitioner was required to submit an undertaking of not litigating for the purposes of his seniority with his batch; for fixation of his seniority after completion of the probationary period; and to appear in the forthcoming examination.

8. The petitioner submitted his undertaking on

08.05.2018, copy of which is Annexure-2 to the writ petition.

9. Subsequent thereto, the petitioner was permitted to appear in the examination, which he successfully qualified, and thereafter has been confirmed as an Assistant Engineer vide order dated 30.10.2018, copy of which is annexure-1-A to the writ petition.

10. Raising a challenge to the order dated 28.02.2018, which had required the petitioner to submit an undertaking and not claim any seniority, the instant petition has been filed.

11. The argument of learned counsel for the petitioner is that it is on account of his medical condition, which prevented him from continuing in training for the period from 24.02.2013 to 04.08.2014, which has been found to be true by the respondents while directing an inquiry, the report of which has been submitted by the Vigilance Department on 08.09.2015, and consequently confirming him with effect from 30.10.2018, and not giving any benefit of seniority along with his batchmate of the year 2012 would be an act which is clearly not countenanced in the eyes of law, more particularly when the training period of the petitioner was interrupted on account of circumstances beyond his control and on account of the medical condition, which, as already discussed above, has been found to be correct by the respondents themselves.

12. On the other hand, Sri Neerav Chitravanshi, learned counsel appearing for the respondents No.2 to 5, has argued that the terms and conditions of the appointment of the petitioner as a Trainee vide order dated 05.05.2012 were explicit. The explicit terms and conditions specifically provided that the training period of the petitioner was for a period of twelve months, which could be extended for a further period of twelve months. Once the petitioner had absconded during the training period from 24.02.2013 to 04.08.2014 and in fact, when he submitted his joining, he submitted a medical certificate of an optometrist, which clearly did not reflect Pulmonary Tuberculosis. The Department, taking a sympathetic view of the matter, had permitted the petitioner to join on 23.06.2015. It is only when the petitioner had submitted his undertaking of not claiming any seniority alongwith his batchmates of the year 2012, that the petitioner has been permitted to appear in the examination and upon successfully qualifying the same, he has been confirmed as an Assistant Engineer vide order dated 30.10.2018 and thus considering the aforesaid, the petitioner can neither claim nor is entitled to seniority alongwith his batchmates of the year 2012 or for any benefit for aforesaid period from the year 2012 till his confirmation vide the order dated 30.10.2018.

13. So far as the report of the Vigilance Department dated 08.09.2015 is concerned, it is argued that the said report has never been accepted by the Corporation. Consequently, the same would also not be binding upon the Corporation so as to entail the petitioner to be given any benefit for the aforesaid period.

14. The further argument of Sri Neerav Chitravanshi, Advocate is that the decision which has been taken by the Board of not according any benefits to the petitioner for the aforesaid period is in terms of Service Regulation, 1970, which categorically provides in Appendix-B Clause-13 that a candidate will lose his seniority if he fails to qualify in the first test or tests. Thus, the decision taken is in accordance with rules.

15. Heard the learned counsel for the parties and perused the record.

16. From a perusal of the record, it emerges that the petitioner was initially appointed as an Assistant Engineer (Trainee) vide order dated 05.05.2012. The training period was initially for a period of twelve months, which could be extended for a further period of twelve months. Admittedly, during the training period, the petitioner did not report for training for the period from 24.02.2013 till 04.08.2014. Subsequently, the petitioner reported along with a medical certificate before the Department. The respondents directed their Vigilance Department to hold an inquiry in the matter. The Vigilance Department submitted its report dated

08.09.2015, which found the petitioner to have been suffering from Pulmonary Tuberculosis for the aforesaid period and thus made a recommendation in the said report for grant of due allowances to the petitioner for the aforesaid period and for treating the said period as leave due.

17. The Department, taking a sympathetic view of the matter, had permitted the petitioner to join duty as an Assistant Engineer (Trainee) on 23.06.2015. Subsequent to the submission of the report dated 08.09.2015, the petitioner, vide order dated 28.02.2018, has been required to submit an undertaking of not litigating for the purposes of his seniority with his batch; for fixation of his seniority after completion of the probationary period; and to appear in the forthcoming examination.

18. The petitioner submitted his undertaking and, in pursuance thereof, after qualifying in the examination, was confirmed vide order dated 30.10.2018 as an Assistant Engineer.

19. The instant petition has been filed raising a challenge to the order dated 28.02.2018, whereby the petitioner is sought to be not given any benefit of the seniority along with his batchmates for the period from 2012 till 2018 and for other benefits.

20. The reason, which has prevailed on the respondents for not granting the benefit of seniority etc., are the explicit terms and conditions in the appointment order of the petitioner dated 05.05.2012, which categorically provided that the training period of a Trainee was for a period of twelve months, which could be extended for a further period of twelve months, meaning thereby that with the appointment of the petitioner as a Trainee on

05.05.2012, the training period could only be extended up to May 2014. However, the petitioner was absent for the period from 24.02.2013 till 04.08.2014 and has only been permitted to join back on 23.06.2015. The respondent-Corporation has taken a sympathetic view of the matter. The Department, on its own accord, had also inquired into the unauthorized absence of the petitioner from 24.02.2013 till 04.08.2014 and the competent ofÏcer of the Corporation has, in fact, submitted his report, whereby the unauthorized absence of the petitioner has been found to be on account of Pulmonary Tuberculosis and the said period has also been recommended for being condoned and for grant of the benefits.

21. Admittedly, subsequent to the petitioner being asked to submit an undertaking through the order dated

28.02.2018 and the undertaking having been given, the petitioner has qualified in the examination and also being confirmed vide the order dated 30.10.2018 as an Assistant Engineer.

22. Thus, the only thing which now remains is the counting of the period for the period from 05.05.2012 till the confirmation of the petitioner dated 30.10.2018.

23. The said period has not been counted by the respondents on the ground of the Regulations, 1970 more particularly Appendix-B Clause-13, which provides that a candidate will loose his seniority if he fails to qualify in the first test or tests. However, it is not the case of the respondents that the petitioner failed to qualify in the test or the tests that had been held. Admittedly, the petitioner did not appear in any of the test during 2012 to 2014 on account of the reasons beyond his control and which have also been found to be correct by the ofÏcer who was directed to hold an inquiry i.e. the Vigilance Department, which, in fact, as already indicated above, has found the petitioner to be suffering from Pulmonary Tuberculosis. The only test in which the petitioner has appeared subsequent to having been permitted to join on 23.06.2015 and after submission of his undertaking, has been qualified by him and he has thereafter been confirmed. Thus, Appendix-B Clause-13 of Regulation, 1970 would have no applicability in the facts of the instant case as the petitioner never failed to qualify in the test.

24. So far as the ground taken by the respondents that the report of the Vigilance Department pertaining to the unauthorized absence of the petitioner was not accepted, the same may also not detain the Court, inasmuch as it is the department itself which had sent the matter to the Vigilance Department for its report and in case, the report was in favour of the petitioner, yet the same was not accepted, it is the department which has to thank itself for the same, but non- acceptance of the report cannot be held against the petitioner.

25. So far as the ground taken by the respondents that the petitioner had given an undertaking of not litigating for the purpose of his seniority with his batch or for fixation of his seniority after completion of the probationary period, the same may also not detain the Court keeping in view the law laid down by the Hon'ble Supreme Court in the case of Nar Singh Pal vs. Union of India and others, (2000) 3 SCC 588, wherein the Hon'ble Supreme Court has held that fundamental rights under the Constitution cannot be bartered away neither they can be compromised nor can there be any estoppel against the exercise of fundamental rights available under the Constitution. Thus, the said ground is also rejected.

26. Keeping in view the aforesaid discussion, the writ petition is disposed of with the direction to the competent authority to consider the claim of the petitioner for counting of the training period since the year 2012 for his seniority at par with his batchmates as per rules keeping in view the observations made above.

27. Let such consideration be made within a period of three months from the date of receipt of a certified copy of this order. Order Date :- 1.7.2025 cks/- [Abdul Moin, J.] CHANDRA KANT SINGH High Court of Judicature at Allahabad, Lucknow Bench

annexure-3 to the writ petition.

4. Though the complete appointment order has not been annexed by the petitioner, yet a copy of the same has been annexed by Sri Neerav Chitravanshi, learned counsel appearing for the respondents No.2 to 5, in the counter afÏdavit as Annexure-CA 3.

5. Perusal of the terms and conditions of the appointment would indicate that the petitioner was to be on training for a period of twelve months, which training could be extended for a further period of twelve months. During the said training period, the petitioner was to appear in a qualifying examination, and in case he was to succeed in the said examination, he would be appointed as an Assistant Engineer. Two examinations were permitted during the aforesaid training period, and in case a person did not qualify in the said examination, his training would be terminated. It is contended that on account of severe medical condition, the petitioner could not continue the training with effect from 24.02.2013 till 04.08.2014. Thereafter, he was permitted to join back by the Corporation on

23.06.2015, again as a Trainee.

6. The matter pertaining to the unauthorized absence of the petitioner for the aforesaid period, i.e.,

24.02.2013 to 04.08.2014, was inquired into by the Corporation. The Superintendent of Police (Vigilance) submitted his report dated 08.09.2015, a copy of which is annexure-16 to the writ petition, from which it emerges that the petitioner was suffering from Pulmonary Tuberculosis, and thus a recommendation was made that the period of absence of the petitioner from 26.02.2013 to 01.08.2014 can be regularized on the basis of the medical certificates, and the remaining period could be treated as having been spent for travelling, etc.

7. Subsequent thereto, vide the order impugned dated

28.02.2018, copy of which is Annexure-1 to the writ petition, the petitioner was required to submit an undertaking of not litigating for the purposes of his seniority with his batch; for fixation of his seniority after completion of the probationary period; and to appear in the forthcoming examination.

8. The petitioner submitted his undertaking on

08.05.2018, copy of which is Annexure-2 to the writ petition.

9. Subsequent thereto, the petitioner was permitted to appear in the examination, which he successfully qualified, and thereafter has been confirmed as an Assistant Engineer vide order dated 30.10.2018, copy of which is annexure-1-A to the writ petition.

10. Raising a challenge to the order dated 28.02.2018, which had required the petitioner to submit an undertaking and not claim any seniority, the instant petition has been filed.

11. The argument of learned counsel for the petitioner is that it is on account of his medical condition, which prevented him from continuing in training for the period from 24.02.2013 to 04.08.2014, which has been found to be true by the respondents while directing an inquiry, the report of which has been submitted by the Vigilance Department on 08.09.2015, and consequently confirming him with effect from 30.10.2018, and not giving any benefit of seniority along with his batchmate of the year 2012 would be an act which is clearly not countenanced in the eyes of law, more particularly when the training period of the petitioner was interrupted on account of circumstances beyond his control and on account of the medical condition, which, as already discussed above, has been found to be correct by the respondents themselves.

12. On the other hand, Sri Neerav Chitravanshi, learned counsel appearing for the respondents No.2 to 5, has argued that the terms and conditions of the appointment of the petitioner as a Trainee vide order dated 05.05.2012 were explicit. The explicit terms and conditions specifically provided that the training period of the petitioner was for a period of twelve months, which could be extended for a further period of twelve months. Once the petitioner had absconded during the training period from 24.02.2013 to 04.08.2014 and in fact, when he submitted his joining, he submitted a medical certificate of an optometrist, which clearly did not reflect Pulmonary Tuberculosis. The Department, taking a sympathetic view of the matter, had permitted the petitioner to join on 23.06.2015. It is only when the petitioner had submitted his undertaking of not claiming any seniority alongwith his batchmates of the year 2012, that the petitioner has been permitted to appear in the examination and upon successfully qualifying the same, he has been confirmed as an Assistant Engineer vide order dated 30.10.2018 and thus considering the aforesaid, the petitioner can neither claim nor is entitled to seniority alongwith his batchmates of the year 2012 or for any benefit for aforesaid period from the year 2012 till his confirmation vide the order dated 30.10.2018.

13. So far as the report of the Vigilance Department dated 08.09.2015 is concerned, it is argued that the said report has never been accepted by the Corporation. Consequently, the same would also not be binding upon the Corporation so as to entail the petitioner to be given any benefit for the aforesaid period.

14. The further argument of Sri Neerav Chitravanshi, Advocate is that the decision which has been taken by the Board of not according any benefits to the petitioner for the aforesaid period is in terms of Service Regulation, 1970, which categorically provides in Appendix-B Clause-13 that a candidate will lose his seniority if he fails to qualify in the first test or tests. Thus, the decision taken is in accordance with rules.

15. Heard the learned counsel for the parties and perused the record.

16. From a perusal of the record, it emerges that the petitioner was initially appointed as an Assistant Engineer (Trainee) vide order dated 05.05.2012. The training period was initially for a period of twelve months, which could be extended for a further period of twelve months. Admittedly, during the training period, the petitioner did not report for training for the period from 24.02.2013 till 04.08.2014. Subsequently, the petitioner reported along with a medical certificate before the Department. The respondents directed their Vigilance Department to hold an inquiry in the matter. The Vigilance Department submitted its report dated

08.09.2015, which found the petitioner to have been suffering from Pulmonary Tuberculosis for the aforesaid period and thus made a recommendation in the said report for grant of due allowances to the petitioner for the aforesaid period and for treating the said period as leave due.

17. The Department, taking a sympathetic view of the matter, had permitted the petitioner to join duty as an Assistant Engineer (Trainee) on 23.06.2015. Subsequent to the submission of the report dated 08.09.2015, the petitioner, vide order dated 28.02.2018, has been required to submit an undertaking of not litigating for the purposes of his seniority with his batch; for fixation of his seniority after completion of the probationary period; and to appear in the forthcoming examination.

18. The petitioner submitted his undertaking and, in pursuance thereof, after qualifying in the examination, was confirmed vide order dated 30.10.2018 as an Assistant Engineer.

19. The instant petition has been filed raising a challenge to the order dated 28.02.2018, whereby the petitioner is sought to be not given any benefit of the seniority along with his batchmates for the period from 2012 till 2018 and for other benefits.

20. The reason, which has prevailed on the respondents for not granting the benefit of seniority etc., are the explicit terms and conditions in the appointment order of the petitioner dated 05.05.2012, which categorically provided that the training period of a Trainee was for a period of twelve months, which could be extended for a further period of twelve months, meaning thereby that with the appointment of the petitioner as a Trainee on

05.05.2012, the training period could only be extended up to May 2014. However, the petitioner was absent for the period from 24.02.2013 till 04.08.2014 and has only been permitted to join back on 23.06.2015. The respondent-Corporation has taken a sympathetic view of the matter. The Department, on its own accord, had also inquired into the unauthorized absence of the petitioner from 24.02.2013 till 04.08.2014 and the competent ofÏcer of the Corporation has, in fact, submitted his report, whereby the unauthorized absence of the petitioner has been found to be on account of Pulmonary Tuberculosis and the said period has also been recommended for being condoned and for grant of the benefits.

21. Admittedly, subsequent to the petitioner being asked to submit an undertaking through the order dated

28.02.2018 and the undertaking having been given, the petitioner has qualified in the examination and also being confirmed vide the order dated 30.10.2018 as an Assistant Engineer.

22. Thus, the only thing which now remains is the counting of the period for the period from 05.05.2012 till the confirmation of the petitioner dated 30.10.2018.

23. The said period has not been counted by the respondents on the ground of the Regulations, 1970 more particularly Appendix-B Clause-13, which provides that a candidate will loose his seniority if he fails to qualify in the first test or tests. However, it is not the case of the respondents that the petitioner failed to qualify in the test or the tests that had been held. Admittedly, the petitioner did not appear in any of the test during 2012 to 2014 on account of the reasons beyond his control and which have also been found to be correct by the ofÏcer who was directed to hold an inquiry i.e. the Vigilance Department, which, in fact, as already indicated above, has found the petitioner to be suffering from Pulmonary Tuberculosis. The only test in which the petitioner has appeared subsequent to having been permitted to join on 23.06.2015 and after submission of his undertaking, has been qualified by him and he has thereafter been confirmed. Thus, Appendix-B Clause-13 of Regulation, 1970 would have no applicability in the facts of the instant case as the petitioner never failed to qualify in the test.

24. So far as the ground taken by the respondents that the report of the Vigilance Department pertaining to the unauthorized absence of the petitioner was not accepted, the same may also not detain the Court, inasmuch as it is the department itself which had sent the matter to the Vigilance Department for its report and in case, the report was in favour of the petitioner, yet the same was not accepted, it is the department which has to thank itself for the same, but non- acceptance of the report cannot be held against the petitioner.

25. So far as the ground taken by the respondents that the petitioner had given an undertaking of not litigating for the purpose of his seniority with his batch or for fixation of his seniority after completion of the probationary period, the same may also not detain the Court keeping in view the law laid down by the Hon'ble Supreme Court in the case of Nar Singh Pal vs. Union of India and others, (2000) 3 SCC 588, wherein the Hon'ble Supreme Court has held that fundamental rights under the Constitution cannot be bartered away neither they can be compromised nor can there be any estoppel against the exercise of fundamental rights available under the Constitution. Thus, the said ground is also rejected.

26. Keeping in view the aforesaid discussion, the writ petition is disposed of with the direction to the competent authority to consider the claim of the petitioner for counting of the training period since the year 2012 for his seniority at par with his batchmates as per rules keeping in view the observations made above.

27. Let such consideration be made within a period of three months from the date of receipt of a certified copy of this order. Order Date :- 1.7.2025 cks/- [Abdul Moin, J.] CHANDRA KANT SINGH High Court of Judicature at Allahabad, Lucknow Bench