Allahabad High Court
Maqsood Alam vs State Of U.P. And Others on 18 August, 2022
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 05.08.2022 Delivered on 18.08.2022 Court No. - 36 Case :- WRIT - A No. - 16581 of 2010 Petitioner :- Maqsood Alam Respondent :- State of U.P. and Others Counsel for Petitioner :- Durga Prasad Srivastava,Anand Kumar Srivastava Counsel for Respondent :- C.S.C., Ashish Mishra,Bhanu Bhusan Jauhari Hon'ble Saurabh Shyam Shamshery,J.
1. Petitioner was appointed as Orderly by the then District Judge, Basti on 23.06.1978 and thereafter he was transferred to District Siddharth Nagar, after creation of new district. Petitioner worked for about 32 years when by impugned order dated 19.01.2010 passed by the then District Judge Siddharth Nagar, his services were terminated on the ground that when he was appointed as Orderly on 23.06.1978 he was only 16 years, 7 months and 13 days old, i.e., below the age of 18 years which was contrary to Rule 8 of U.P. Subordinate Civil Court Inferior Establishment Rules, 1955 (hereinafter referred to as "Rules, 1955") that, no person shall be appointed to the establishment by direct recruitment unless he be above 18 years and below 32 years of age on the date of appointment.
2. This writ petition was filed in the year 2010 and no interim order was passed.
3. Sri Anand Kumar Srivastava, learned counsel for petitioner submits that in reply to the show cause notice petitioner has specifically mentioned that he was appointed after a due process and was granted promotion also. He has worked for more than 32 years without any complaint. Petitioner has submitted all the documents at the time of his appointment. He also pointed out that in the reply it was also mentioned that petitioner was granted exemption with regard to age. Learned counsel further submitted that equity is in favour of petitioner as he has worked for more than 32 years and at this stage to terminate him on the ground of age, suffers with malice. Learned counsel has relied on a judgment passed by this Court in Kalu Ram vs. State of U.P. and another, 2000(1) AWC 509 and Supreme Court's judgment in Bhagwati Prasad vs. Delhi State Mineral Development Corporation, (1990) 1 SCC 361 that, termination on the ground of age after so many years is arbitrary and violative of Article 14 of the Constitution of India. Learned counsel has also placed reliance on another judgment of this Court in Kalawati vs. State of U.P. and others, 2017(1) ADJ 450 wherein the case of Smt. Ram Devi vs. Director, Bal Vikas Sewa Avam Pushtahar, Uttar Pradesh, Lucknow and others, 2006(1) LLN 802 was followed that, after long inning of service an employee cannot be terminated on the ground that at the time of initial engagement he was less than 18 years.
4. Per contra, Sri Jitendra Kumar Singh, learned counsel appearing for respondents, submits that it was admitted case of petitioner that he was less than 18 years of age on the date of his appointment, therefore, it would be contrary to Rule 8 of Rules, 1955. He placed reliance on this Court's judgment in Mata Baran vs. State of U.P. and others, 2012(2) ADJ 189 that any appointment made in contravention of rules would be void ab initio and long continuance of service would not confer any right upon the incumbent to hold post. He also placed reliance on another judgment of this Court in Daya Shankar Upadhyaya vs. State of U.P. and others, 2018(1) ADJ 821 (DB) wherein similar view was taken.
5. I have heard learned counsel for parties and perused the material available on record as well as the case laws cited by the parties.
6. From the above referred facts and submission, undisputedly petitioner was aged about 16 years, 7 months and 13 days on 23.06.1978 when he was appointed as Orderly. He worked for almost 32 years and in between not only he was regularized but granted promotion also. Respondent-Judgeship on the basis of inquiry and considering the admission of petitioner that he was granted age relaxation at the time of appointment, held that appointment of petitioner was in contravention of Rules and, therefore, terminated his services.
7. Law in this regard is consistent that any appointment in contravention of Rules is void ab initio and in the present case age of petitioner was less than 18 years on the date of appointment, therefore, he was not eligible for appointment in terms of Rule 8 of Rules, 1955. In State of Odisha and others vs. Sulekh Chandra Pradhan etc., 2022 SCC OnLine SC 476 Supreme Court has reiterated the above ratio in para 32 in following words:
"32. It is not in dispute that the appointment of all the applicants/ respondents/ teachers have been made directly by the respective Management without following the procedure as prescribed under the Rules/Statute. It is a trite law that the appointments made in contravention of the statutory provisions are void ab initio. Reference in this respect could be made to the judgments of this Court in the cases of Ayurvidya Prasarak Mandal and another vs. Geeta Bhaskar Pendse (Mrs) and others; J & K Public Service Commission and others vs. Dr. Narinder Mohan and others; Official Liquidator vs. Dayanand and others; and, Union of India and another vs. Raghuwar Pal Singh."
8. The judgments relied on by learned counsel for petitioner are based on equity on the ground that incumbent has worked for a very long period.
9. In the impugned order the conduct of petitioner was also not found upto the mark as he was awarded as many as 16 punishments during his tenure of 32 years. However, it would not be a substantial issue when petitioner was terminated on the ground that he was not eligible according to his age on the date of appointment. It is settled law that equity follows law and the other factor which goes against equity is that no interim order is passed by this Court and this writ petition is heard after about 12 years.
10. As discussed above, the law is against petitioner that any appointment in contravention of rules is void ab initio and even continuance of service for many years would not confer any right to continue in service. I do not find that there is any equity in favour of petitioner. Undisputedly petitioner was less than 18 years when he was appointed as Orderly on 23.06.1978, which is in contravention of Rule 8 of Rules, 1955. Therefore, petitioner's appointment being in contravention of relevant rules, is void ab initio and as such I do not find any error in the impugned order.
11. The writ petition lacks merit. Dismissed accordingly.
Order Date :- 18.08.2022 AK