High Court · 2025

Case :- WRIT - A No. - 8707 of 2022 Petitioner :- Madan Lal Respondent :- State Of U.P.Thru.Addl.Chief Secy.Consumer Protection And Weight And Measurment Deptt. And 3 Others Counsel for Petitioner :- Asit Srivastava Counsel for Respondent :- C.S.C. Hon'ble Alok Mathur,J.

1. Heard learned counsel for the petitioner and learned Standing Counsel on behalf of the respondents.

2. The present petition has been filed with the following prayer: "(i) Issue a writ, order or direction or writ in the nature of certiorari quashing the order dated 17.11.2022 passed by respondent No. 2 as contained in the Annexure No. 1 and also the order dated 23.11.2022 passed by the respondent No.4 as contained in Annexure No.2 to the writ petition. (ii) Issue a writ, order or direction or writ in the nature of mandamus commanding the respondents to permit the petitioner to continue on the post of Safai Karmachari in the same status, as was prior to the passing of the aforesaid impugned orders and be paid salary regularly. (iii) Issue any other appropriate writ, order or direction in favour of the petitioner as the Hon'ble Court may deem fit in the circumstances of the case; (iv) Award the costs of the petition to the petitioner."

3. Learned counsel for the petitioner has submitted that the petitioner was appointed on the post of Class-IV Safai Karmchari in the State Consumer Disputes Redressal Commission, UP on 03.02.2010 after following the due procedure. According to the terms and conditions of the appointment, he was being given fixed pay of ?1800/- per month. It has further been submitted that when the recommendation of the 6th Pay Commission was implemented, the petitioner made several representations for being granted the benefit of the same, however, he was denied the benefit of 6th Pay Commission and no decision was taken in that regard. Thereafter, the petitioner approached this Court by filing a petition bearing Writ Petition No.3450 of 2011 (S/S), in which, this Court recorded entire assertions made by the petitioner regarding his service and directed the Principal Secretary, Consumer Protection and Weight Measurement Department, Govt. of UP to examine the issue in light of the recommendation made by the Special Secretary, Consumer Protection and Weight Measurement Department, Govt. of UP. It has next been submitted that after deciding the case of the petitioner, he was found fit to be granted the benefit of recommendation of the 6th Pay Commission, and thereafter, from 03.06.2013, he was granted the benefit of recommendation of 6th Pay Commission. The petitioner continued to receive all the service benefits, for which, he was eligible till subsequently, the recommendation of 7th Pay Commission came into effect. Again, the petitioner canvassed his case for being granted the benefit, and subsequently, filed a petition bearing Writ Petition No.16170 of 2021 before this Court, which was disposed off by this Court by means of order dated 29.07.2021 directing the respondents to decide the representation of the petitioner. It has further been submitted that the impugned order dated 17.11.2022 was passed in compliance of the direction of the Court dated 29.07.2021. While considering the case of the petitioner, respondents have stated that it was found that the appointment of the petitioner was dehors the rules and the post on which the petitioner was appointed was in fact to be filled up through contractual appointment and the Appointing Authority, without following the law, had appointed the petitioner and hence, the Competent Authority was of the view that in light of the illegal appointment of the petitioner, he could not be granted benefit of the recommendation of the 7th Pay Commission and the respondents even went to the extent of terminating the service of the petitioner vide termination order dated 23.11.2022 on account of the fact that his appointment was illegal and arbitrary.

4. Learned counsel for the petitioner has further submitted that the petitioner in the present petition, has assailed the validity of the order dated 17.11.2022 as well as sought the direction to the respondents to permit the petitioner to continue in service and be paid salary regularly.

5. Learned counsel for the petitioner has next submitted that after expiry of more than 12 years, the service of the petitioner has been terminated after re-examining the issue pertaining to his appointment. He has further submitted that the said issue could not have been examined after such a long length of time especially considering the fact that the respondents were directed by this Court to examine the issue, as to whether, he was entitled to be given the benefit of recommendation of 7th Pay Commission. Instead of deciding the controversy which was referred, they proceeded in the most arbitrary and mala fide manner to write a finding that the appointment of the petitioner itself was dehors the rule and illegal, and accordingly have proceeded to terminate the services of the petitioner. He has further submitted that no opportunity of hearing or any notice was given to the petitioner prior to the said order terminating services. Therefore, the impugned order itself is illegal and arbitrary and in violation of Articles 14 and 16 of the Constitution of India. He has further submitted that had the petitioner been given the opportunity of hearing, he would have demonstrated that his appointment was not against the rule, but it was done after following the proper procedure and which was also subject to an interview by the Chairman of the Commission, thereafter, he was declared selected and appointed on the post of Safai Karmchari. He has also submitted that due to sudden increase in work in the State Commission when they had acquired a new building, there was a dire need of and consequently, appointment of Safai Karmchari, appointment of petitioner was made.

6. Learned Standing Counsel has opposed the petition. He has submitted that apart from the grounds taken in the impugned order pertaining to termination of the services of the petitioner on account of the fact that his initial appointment was illegal, at the relevant time, there was a ban on appointments and accordingly, the Appointing Authority could not have proceeded to appoint the petitioner considering the said Government Order dated 08.09.2010. Apart from the above, it has also been submitted that once it is determined that appointment of the petitioner was dehors the rules, then the only alternative to the Authority was to terminate the services of the petitioner, therefore, there is no infirmity in the aforesaid order.

7. I have heard the learned counsels for the parties and also perused the record. It is noticed that the petitioner was appointed on 03.02.2010 after publication of an advertisement by means of a notice. In pursuance of said notice, the petitioner had applied and after following the procedure prescribed, the appointment letter of the petitioner was issued. These facts are not even disputed in the counter affidavit. Subsequently, the petitioner was granted the benefit of 6th Pay Commission by the respondents themselves on the direction of this Court passed in Writ Petition No.3450 of 2011 when the respondent were directed to decide the representation of the petitioner. It is also noticed that the respondents themselves had passed the appropriate order granting the benefit of recommendation of 6th Pay Commission to the petitioner. Subsequently, when the issue was raised by the petitioner with regard to the grant of recommendation of 7th Pay Commission, the respondents have chosen to not only deny the said benefits, but also to hold that the very initial appointment of the petitioner was dehors the rules.

8. Needless to say, even if, the facts as asserted by the respondents in the impugned order are correct or they believe that to be correct, the same could have been taken cognizance immediately after discovery of the fact after appointment of the petitioner. There is no explanation, as to why, it took more than 12 years to discover that the appointment of the petitioner was dehors the rules. Accordingly, this Court is of the concerned view that after rendering services for over 11 years, termination on the ground that the very initial order of appointment was illegal cannot be passed.

9. Considering the ground taken by the respondents in the counter affidavit that there was a ban on appointments on 08.09.2010. It is noticed that petitioner was appointed on 03.02.2010 on which day, the Government order dated 08.09.2010 was not in existence. Accordingly, the Government order which was passed subsequently, and which does not have any retrospective operation cannot be taken or used as a ground for terminating the services of the petitioner prior to the promulgation of the said order. Thus, the ground raised by the learned Standing Counsel in the counter affidavit is bereft of merits and is accordingly rejected.

10. Apart from the above, it is noticed that no opportunity of hearing was given to the petitioner before terminating his services. In this regard, there is clear violation of Articles 14 and 16 of Constitution of India, inasmuch as in case the service of any Government servant is to be terminated, he has to be given benefit of Article 311 of the Constitution of India and such order can be passed only after giving the due opportunity of hearing to the Government servant. In the absence of any opportunity, the order of termination itself would be rendered illegal and arbitrary and open to challenge before this Court in writ proceedings. Accordingly, I find that the impugned orders dated 17.11.2022 and 23.11.2022 are illegal and arbitrary and accordingly quashed.

11. Accordingly, the writ petition is allowed with full consequences. The respondents are directed to reinstate the services of the petitioner, forthwith within a period of four weeks from the date of production of a certified copy of this order. (Alok Mathur,J.) Order Date :- 23.1.2025 V. Sinha VAISHALI SINHA High Court of Judicature at Allahabad, Lucknow Bench

Case :- WRIT - A No. - 8707 of 2022 Petitioner :- Madan Lal Respondent :- State Of U.P.Thru.Addl.Chief Secy.Consumer Protection And Weight And Measurment Deptt. And 3 Others Counsel for Petitioner :- Asit Srivastava Counsel for Respondent :- C.S.C. Hon'ble Alok Mathur,J.

1. Heard learned counsel for the petitioner and learned Standing Counsel on behalf of the respondents.

2. The present petition has been filed with the following prayer: "(i) Issue a writ, order or direction or writ in the nature of certiorari quashing the order dated 17.11.2022 passed by respondent No. 2 as contained in the Annexure No. 1 and also the order dated 23.11.2022 passed by the respondent No.4 as contained in Annexure No.2 to the writ petition. (ii) Issue a writ, order or direction or writ in the nature of mandamus commanding the respondents to permit the petitioner to continue on the post of Safai Karmachari in the same status, as was prior to the passing of the aforesaid impugned orders and be paid salary regularly. (iii) Issue any other appropriate writ, order or direction in favour of the petitioner as the Hon'ble Court may deem fit in the circumstances of the case; (iv) Award the costs of the petition to the petitioner."

3. Learned counsel for the petitioner has submitted that the petitioner was appointed on the post of Class-IV Safai Karmchari in the State Consumer Disputes Redressal Commission, UP on 03.02.2010 after following the due procedure. According to the terms and conditions of the appointment, he was being given fixed pay of ?1800/- per month. It has further been submitted that when the recommendation of the 6th Pay Commission was implemented, the petitioner made several representations for being granted the benefit of the same, however, he was denied the benefit of 6th Pay Commission and no decision was taken in that regard. Thereafter, the petitioner approached this Court by filing a petition bearing Writ Petition No.3450 of 2011 (S/S), in which, this Court recorded entire assertions made by the petitioner regarding his service and directed the Principal Secretary, Consumer Protection and Weight Measurement Department, Govt. of UP to examine the issue in light of the recommendation made by the Special Secretary, Consumer Protection and Weight Measurement Department, Govt. of UP. It has next been submitted that after deciding the case of the petitioner, he was found fit to be granted the benefit of recommendation of the 6th Pay Commission, and thereafter, from 03.06.2013, he was granted the benefit of recommendation of 6th Pay Commission. The petitioner continued to receive all the service benefits, for which, he was eligible till subsequently, the recommendation of 7th Pay Commission came into effect. Again, the petitioner canvassed his case for being granted the benefit, and subsequently, filed a petition bearing Writ Petition No.16170 of 2021 before this Court, which was disposed off by this Court by means of order dated 29.07.2021 directing the respondents to decide the representation of the petitioner. It has further been submitted that the impugned order dated 17.11.2022 was passed in compliance of the direction of the Court dated 29.07.2021. While considering the case of the petitioner, respondents have stated that it was found that the appointment of the petitioner was dehors the rules and the post on which the petitioner was appointed was in fact to be filled up through contractual appointment and the Appointing Authority, without following the law, had appointed the petitioner and hence, the Competent Authority was of the view that in light of the illegal appointment of the petitioner, he could not be granted benefit of the recommendation of the 7th Pay Commission and the respondents even went to the extent of terminating the service of the petitioner vide termination order dated 23.11.2022 on account of the fact that his appointment was illegal and arbitrary.

4. Learned counsel for the petitioner has further submitted that the petitioner in the present petition, has assailed the validity of the order dated 17.11.2022 as well as sought the direction to the respondents to permit the petitioner to continue in service and be paid salary regularly.

5. Learned counsel for the petitioner has next submitted that after expiry of more than 12 years, the service of the petitioner has been terminated after re-examining the issue pertaining to his appointment. He has further submitted that the said issue could not have been examined after such a long length of time especially considering the fact that the respondents were directed by this Court to examine the issue, as to whether, he was entitled to be given the benefit of recommendation of 7th Pay Commission. Instead of deciding the controversy which was referred, they proceeded in the most arbitrary and mala fide manner to write a finding that the appointment of the petitioner itself was dehors the rule and illegal, and accordingly have proceeded to terminate the services of the petitioner. He has further submitted that no opportunity of hearing or any notice was given to the petitioner prior to the said order terminating services. Therefore, the impugned order itself is illegal and arbitrary and in violation of Articles 14 and 16 of the Constitution of India. He has further submitted that had the petitioner been given the opportunity of hearing, he would have demonstrated that his appointment was not against the rule, but it was done after following the proper procedure and which was also subject to an interview by the Chairman of the Commission, thereafter, he was declared selected and appointed on the post of Safai Karmchari. He has also submitted that due to sudden increase in work in the State Commission when they had acquired a new building, there was a dire need of and consequently, appointment of Safai Karmchari, appointment of petitioner was made.

6. Learned Standing Counsel has opposed the petition. He has submitted that apart from the grounds taken in the impugned order pertaining to termination of the services of the petitioner on account of the fact that his initial appointment was illegal, at the relevant time, there was a ban on appointments and accordingly, the Appointing Authority could not have proceeded to appoint the petitioner considering the said Government Order dated 08.09.2010. Apart from the above, it has also been submitted that once it is determined that appointment of the petitioner was dehors the rules, then the only alternative to the Authority was to terminate the services of the petitioner, therefore, there is no infirmity in the aforesaid order.

7. I have heard the learned counsels for the parties and also perused the record. It is noticed that the petitioner was appointed on 03.02.2010 after publication of an advertisement by means of a notice. In pursuance of said notice, the petitioner had applied and after following the procedure prescribed, the appointment letter of the petitioner was issued. These facts are not even disputed in the counter affidavit. Subsequently, the petitioner was granted the benefit of 6th Pay Commission by the respondents themselves on the direction of this Court passed in Writ Petition No.3450 of 2011 when the respondent were directed to decide the representation of the petitioner. It is also noticed that the respondents themselves had passed the appropriate order granting the benefit of recommendation of 6th Pay Commission to the petitioner. Subsequently, when the issue was raised by the petitioner with regard to the grant of recommendation of 7th Pay Commission, the respondents have chosen to not only deny the said benefits, but also to hold that the very initial appointment of the petitioner was dehors the rules.

8. Needless to say, even if, the facts as asserted by the respondents in the impugned order are correct or they believe that to be correct, the same could have been taken cognizance immediately after discovery of the fact after appointment of the petitioner. There is no explanation, as to why, it took more than 12 years to discover that the appointment of the petitioner was dehors the rules. Accordingly, this Court is of the concerned view that after rendering services for over 11 years, termination on the ground that the very initial order of appointment was illegal cannot be passed.

9. Considering the ground taken by the respondents in the counter affidavit that there was a ban on appointments on 08.09.2010. It is noticed that petitioner was appointed on 03.02.2010 on which day, the Government order dated 08.09.2010 was not in existence. Accordingly, the Government order which was passed subsequently, and which does not have any retrospective operation cannot be taken or used as a ground for terminating the services of the petitioner prior to the promulgation of the said order. Thus, the ground raised by the learned Standing Counsel in the counter affidavit is bereft of merits and is accordingly rejected.

10. Apart from the above, it is noticed that no opportunity of hearing was given to the petitioner before terminating his services. In this regard, there is clear violation of Articles 14 and 16 of Constitution of India, inasmuch as in case the service of any Government servant is to be terminated, he has to be given benefit of Article 311 of the Constitution of India and such order can be passed only after giving the due opportunity of hearing to the Government servant. In the absence of any opportunity, the order of termination itself would be rendered illegal and arbitrary and open to challenge before this Court in writ proceedings. Accordingly, I find that the impugned orders dated 17.11.2022 and 23.11.2022 are illegal and arbitrary and accordingly quashed.

11. Accordingly, the writ petition is allowed with full consequences. The respondents are directed to reinstate the services of the petitioner, forthwith within a period of four weeks from the date of production of a certified copy of this order. (Alok Mathur,J.) Order Date :- 23.1.2025 V. Sinha VAISHALI SINHA High Court of Judicature at Allahabad, Lucknow Bench