Azhad Husain Naqvi Vs State of U.P.Thru.Prin.Secy Irrigation and Water Resources andOR

Neutral Citation No. - 2025:AHC-LKO:13884

Court No. - 6

Case :- WRIT - A No. - 24788 of 2018

Petitioner :- Azhad Husain Naqvi Respondent :- State Of U.P.Thru.Prin.Secy Irrigation And Water Resources Andor Counsel for Petitioner :- Prafulla Kumar Yadav,B.K.Yadav,Rajendra Pratap Singh,Salman Abbas,Surendra Pratap Singh,Syed Waqar Husain Counsel for Respondent :- C.S.C.

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Hon'ble Alok Mathur,J.

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Heard Sri R.P. Singh along with Sri Salman Abbas, learned counsel for petitioner as well as learned Standing Counsel for respondents.

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It has been submitted by learned counsel for petitioner that petitioner was appointed on the post of Junior Engineer (Civil) in temporary capacity on ad hoc basis in the department of Irrigation and Water Resources, Govt. of U.P. on 24.04.1978 by a selection committee. Subsequently he was awarded adverse entry for the years 1978-1979, 1979-1980 and 1980-1981 and considering the adverse entries, by means of order dated 22.06.1984 he was terminated from service.

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The petitioner being aggrieved by the order of termination dated 22.06.1984 approached this Court by filing a writ petition being Writ Petition No. 3447 (SS) of 1984. On the application for interim relief, by means of order dated 24.08.1984 the order of termination was stayed and liberty was also granted to the respondents to recall the impugned order and pass a fresh order in accordance with law. In compliance of the interim order of this Court dated 24.08.1984, the petitioner was reinstated in service vide order dated 23.10.1984 and accordingly he continued in service on the strength of the aforesaid order.

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It has further been stated that during pendency of the writ petition, the petitioner obtained a Bachelor Degree in Civil Engineering from Aligarh Muslim University in 1986 and accordingly became qualified for direct recruitment on the post of Assistant Engineer. It was also the case of the petitioner that in terms of the U.P. Regularization of Ad hoc Appointment on the post within the purview of Public Service Commission) Rules, 1979, he had a right to be regularised considering that he was fully eligible and qualified to be considered under the

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aforesaid rules for regulrisation. The petitioner had preferred several representations to the authorities raising his grievances with regard to aforesaid facts but none of which were considered and accordingly he had filed another writ petition being Writ Petition No. 4555 (SS) of 1996 seeking a direction to the respondents to promote the petitioner to the post of Assistant Engineer (Civil) against a quota of 8.33 % from the date his juniors were so promoted.

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It has been stated that the writ petition against the order of termination i.e. Writ Petition No. 3447 (SS) of 1984 was again listed on 23.02.1996 and as no appearance was made on behalf of the petitioner and said writ petition was dismissed in default. When the authorities came to know about the dismissal of the aforesaid writ petition in default they issued a show cause notice to the petitioner on 10.01.1997 as to why his services be not terminated in light of the fact that interim order on the strength of which the petitioner was continuing in service no longer exists and the writ petition has been dismissed in default.

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Again by means of order dated 01.05.1997 the services of the petitioner were dismissed. The petitioner in the meanwhile had filed an application for restoration of the writ petition and by means of order dated 27.02.1999 this Court had recalled its order dated 23.02.1996 and restored the writ petition to its original number and also the interim order granted previously came into effect. After restoration of the writ petition, the petitioner made several writ petitions to the respondents for reinstating him in service but he was not allowed to rejoin his services and finally the writ petition was heard on 10th December, 2003 and the same was allowed.

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While allowing the writ petition, the termination order dated 22.06.1984 was quashed and a writ of mandamus was issued commanding the respondents to consider the case of the petitioner for regularisation afresh under the existing rules and in case he was found fit for regularisation he would 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. Despite service of the judgment and order of this Court dated 10.12.2003 neither was the petitioner reinstated in service nor was any consequential benefit of the direction issued by this Court granted to him.

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It has further been stated that State being aggrieved by the judgment and order dated 10.12.2003 of learned Single Judge preferred a special appeal being Special Appeal No. 203/2004 where the Division Bench of this Court has an occasion to examine the correctness of the judgment of the Single Judge

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and held that there was no infirmity in the same and consequently dismissed the special appeal by means of judgment and order dated 31.10.2017. Despite the writ petition being allowed and the special appeal preferred by the State was dismissed, the compliance of the same was not made by the State-respondents and he made repeated representations for being promoted to join and grant the consequential benefits.

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The respondents by means of impugned order dated 09.07.2018 have declined all the benefits to the petitioner including the benefit of promotion stating that serious complaints were there in the working of the petitioner and several adverse entries have been recorded against him due to which his services were terminated on 22.06.1984 and also that there were complaints that bachelor degree obtained by him was forged and fabricated and consequently there was no ground for promoting the petitioner. The petitioner has apart from assailing the order dated 09.07.2018 had also sought a direction to the respondents to pay all the consequently service benefits including arrears of salary along with interest and post retiral dues.

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It has been submitted that once the order of termination has been set aside on 10.12.2003 and even the special appeal has been dismissed on 31.10.2017 and the respondents did not approach any higher court assailing the order of the Division Bench then the judgment of the Single Judge became final and binding upon the respondents and they did not have any alternative except that the compliance of the direction of this Court in its judgment and order dated 10.12.2003.

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Learned Standing Counsel on the other hand has opposed the writ petition but does not dispute the aforesaid facts.

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I have perused the counter affidavit filed by the State and also find that there is no cogent reason given for noncompliance of the directions of the Single Judge dated 10.12.2003. While on the other hand they have merely sought to justify the order of termination dated 22.08.1984.

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I have heard learned counsel for parties and perused the record.

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The fact in the present case are not disputed inasmuch as initially the petitioner was appointed to the post of Junior Engineer in 1978 and subsequently his services were terminated on 22.06.1984. Initially an interim order was passed staying the order of termination on 24.08.1984 but the writ petition was dismissed for want of prosecution on 22.03.1996. during

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currency of the interim order passed, initially the petitioner was reinstated in service which was again dispensed with when the writ petition was dismissed in default but again there is no dispute when the writ petition was restored on 22.09.1999 and the respondents did not reinstate the petitioner in service. The writ petition came to be finally allowed by judgment and order dated 10.12.2003 and even the special appeal preferred by the State against the order of learned Single Judge was dismissed on 31.10.2017 but petitioner was not reinstated in service.

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In the aforesaid circumstances this Court does not see any reason as to why the respondents failed to reinstate the petitioner in service. There were no other alternative except to reinstate the petitioner in service considering the fact that the order of termination dated 22.06.1984 stood quashed. There is no even a feeble effort in the counter affidavit to give any cogent reason for non-compliance of the judgement and order dated 10.12.2003. Once the order of termination is set aside then natural consequence would be of reinstatement in service of the government servant and accordingly prayer made by the petitioner in the present writ petition deserves to be allowed.

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The question as to what consequential benefits, the respondents would pay to the petitioner. This aspect of the matter was not dealt by the Hon'ble Single Judge while allowing the writ petition and there was no mention of the grant of consequential benefits In such a situation ordinarily the person would be entitled for payment of the only back-wages unless and until any reason is stated to reduce the quantum of back-wages payable to the government servant in any peculiar circumstances of the case.

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Hon'ble the Supreme Court in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324 , has held as under :-

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"22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employeremployee relationship, the latter's source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times,

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the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments."

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Hon'ble the Supreme Court in the case of Bhuvnesh Kumar Dwivedi v. Hindalco Industries Ltd., (2014) 11 SCC 85 , has held as under :-

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"36. On the issue of back wages to be awarded in favour of the appellant, it has been held by this Court in Shiv Nandan Mahto v. State of Bihar [(2013) 11 SCC 626] that if a workman is kept out of service due to the fault or mistake of the establishment/company he was working in, then the workman is entitled to full back wages for the period he was illegally kept out of service.

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The relevant paragraph of the judgment reads as under : (SCC p. 628, para 8)

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"8. … In fact, a perusal of the aforesaid short order passed by the Division Bench would clearly show that the High Court had not even acquainted itself with the fact that the appellant was kept out of service due to a mistake. He was not kept out of service on account of suspension, as wrongly recorded by the High Court. The conclusion is, therefore, obvious that the appellant could not have been denied the benefit of back wages on the ground that he had not worked for the period when he was illegally kept out of service. In our opinion, the appellant was entitled to be paid full back wages for the period he was kept out of service."

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Hon'ble the Supreme Court in the case of Anantdeep Singh v. The High Court of Punjab and Haryana at Chandigarh & Anr. (2024) SCC OnLine SC 244 9, has held as under :-

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"21. Once the termination order is set aside and judgment of the High Court dismissing the writ petition challenging the said termination order has also been set aside, the natural consequence is that the employee should be taken back in service and thereafter proceeded with as per the directions. Once the termination order is set aside then the employee is deemed to be in service. We find no justification in the inaction of the High Court and also the State in not taking back the appellant into service after the order dated 20.04.2022. No decision was taken either by the High Court or by the State of taking back the appellant into service and no decision was made regarding the back wages from the date the termination order had been passed till the date of reinstatement which should be the date of the judgment of this Court. In any case, the appellant was entitled to salary from the date of judgment dated 20.04.2022 till fresh termination order was passed on 02.04.2024. The appellant would thus be entitled to full salary for the above period to be calculated with all benefits admissible treating the appellant to be in continuous service. "

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In the present case, it has been submitted that petitioner would have attained the age of superannuation on 31.07.2012 and certainly form the date of his termination on 22.06.1984 to 31.07.2012 he would be deemed to be in service. He was reinstated in service and continued till 01.05.1997 for which he was paid salary but since 01.05.1997 till 31.07.2012, no salary was paid to the petitioner as he was not reinstated in service. Accordingly, considering the period during which the petitioner was illegally ousted from service, ends of justice would be met in case 50% of the back-wages are paid to the petitioner.

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In light of the above, this Court also deprecate the conduct of the respondents inasmuch as having taken due cognizance of the aforesaid facts including the fact that this Court had quashed the order of termination dated 22.06.1984 and even the special appeal of the State was rejected but still in the impugned order dated 09.07.2018 there is no averment pertaining to compliance of the order of learned Single Judge such deliberate and willful disobedience of the Court deserves to be taken seriously. All the State authorities are bound to aid and assist in compliance of the judgment of the Court as per the constitution and it is surprising that having dealt with all the aspects of the case as narrated hereinabove, the respondents did not feel it appropriate to pass any order with regard to the compliance of the judgment of this Court.

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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

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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.

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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.

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(Alok Mathur, J.)

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Order Date :- 6.3.2025 Ravi/

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Digitally signed by :- RAVI SHANKAR SRIVASTAV High Court of Judicature at Allahabad, Lucknow Bench

Azhad Husain Naqvi v. State of U.P.Thru.Prin.Secy Irrigation and Water Resources andOR

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Azhad Husain Naqvi v. State of U.P.Thru.Prin.Secy Irrigation and Water Resources andOR

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