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2025 DIGILAW 1370 (ALL)

Padmakar Mishra v. State of U. P.

2025-11-28

SAURABH SHYAM SHAMSHERY

body2025
JUDGMENT HON'BLE SAURABH SHYAM SHAMSHERY, J. 1. In present writ petitions it is not under much dispute that petitioner was initially appointed as a Sales Officer vide order dated 18.08.1998 by Registrar, Sampoornanand Sanskrit University, Varanasi (hereinafter referred to as “University”). 2. The State of U.P. has issued a Government Order dated 31.12.2003 to Registrar of University that Governor has permitted by Government Order dated 18.09.1998 that a post of Director (Publication) under the Publication Department of University could be filled in by promotion from the post of Sales Officer (Vikray Adhikari). Scanned copy of Government Order dated 31.12.2003 is pasted hereinafter as well as its relevant part is also reproduced hereinafter: 3. Aforesaid order is the bone of contention, since in the year 2019 the State Government has communicated a letter dated 17.09.2019 addressed to Registrar of University that aforesaid Government Order was a forged order and it was accordingly cancelled. This order is subject matter of challenge in Writ-A No. 16669 of 2019 (hereinafter referred to as “First Petition”). 4. It is also not under much dispute that on basis of aforesaid Government Order dated 31.12.2003, earlier the Executive Council of University took a decision dated 14.08.2012 adopting the aforesaid Government Order that Sales Officer can be considered for promotion on the post of Director (Publication). 5. Aforesaid exercise of promotion was undertaken on basis of some writ petitions filed before this Court at the behest of petitioner also since University has proposed to fill the said post by direct recruitment, which was stalled by this Court. Accordingly petitioner was promoted on the post of Director (Publication) vide an order dated 23.08.2012 issued by Registrar of University. 6. It would be relevant to mention here that though Government Order dated 31.12.2003 is set aside subsequently vide Government Order dated 17.09.2019 still no order has been passed to quash the aforesaid order of promotion dated 23.08.2012 which was essentially based on Government Order dated 31.12.2003. The decision of the University dated 14.08.2012 is also not withdrawn and outcome of proposed FIR is also not on record. 7. In aforesaid circumstances, First Petition was filed challenging Government Order dated 17.09.2019 and for reference contents thereof are reproduced hereinafter: 8. The decision of the University dated 14.08.2012 is also not withdrawn and outcome of proposed FIR is also not on record. 7. In aforesaid circumstances, First Petition was filed challenging Government Order dated 17.09.2019 and for reference contents thereof are reproduced hereinafter: 8. In First Petition an order was passed on 23.10.2019 whereby petitioner was allowed to work on the post of Director (Publication) but it was directed that his continuance shall be subject to final decision of writ petition. Said order is reproduced hereinafter: “By means of this writ petition the petitioner has come up to this Court raising a grievance that pursuant to declaration of Government Order dated 31st December, 2003 being forged document the petitioner's services will be affected as the petitioner was given promotion on the post of Director Publication on the basis of the aforesaid Government Order. The petitioner was holding the post of Sales Officer in Sampurnanand Sanskrit University, Varanasi. It has been stated at the Bar that the post of Director Publication was initially occupied by teaching staff but after this Government Order dated 31.12.2003 the post was made promotional from amongst the Sales Officers in the University. Prior to the petitioner one Dr. Harish Chandra Mani Tripathi was promoted from the post of Sales Officer to the post of Director Publication and after his retirement, the petitioner set up a claim for promotion, which was not considered and, therefore, the petitioner filed a writ petition being Writ A No. 56070 of 2008 connected with Writ A No. 3211 of 2010, which was finally decided by judgment and order dated 25.7.2012 directing the University authority to consider the claim of the petitioner for promotion on the post of Director Publication in view of the aforesaid Government Order dated 31.12.2003. Sri Shashi Nandan, learned senior counsel assisted by Sri Satendra Tripathi, learned counsel appearing for the petitioner submits that if at all the aforesaid Government Order is a result of forgery, the petitioner had no role to play in that. The Government had earlier acknowledged the aforesaid Government Order as they were parties in the writ petition but such an objection was never raised. Now for the first time the aforesaid Government Order has been held to be a forged document on the basis of inconclusive enquiry conducted by the State Authority, the date of which has not mentioned. The Government had earlier acknowledged the aforesaid Government Order as they were parties in the writ petition but such an objection was never raised. Now for the first time the aforesaid Government Order has been held to be a forged document on the basis of inconclusive enquiry conducted by the State Authority, the date of which has not mentioned. However, the enquiry report has been filed as Annexure-2 to the writ petition. From the conclusion of the enquiry it has been stated therein that the validity of the Government Order dated 31.12.2003 is doubtful and collusivness of the University also appears to be evident. However, from the concluding portion of the enquiry report, it appears that the enquiry officer, appointed by the Government, suggested special enquiry by some agency. However, the Government has now cancelled the aforesaid Government Order and has directed lodging of an FIR. So far as the cancellation of the Government Order and lodging of an FIR are concerned, I am not inclined to interfere with the same. But so far as the petitioner's continuance on the post is concerned, at this juncture, I am of the view that the petitioner having no role to play, will not be disturbed from the post till the next date of listing. However, his continuance shall be subject to the final decision in the writ petition. Learned Standing Counsel represents respondent nos. 1 and 2. Sri Ved Byas Mishra, learned counsel represents respondents no. 3, 4 and 5. Sri Prabhakar Awasthi, learned counsel submits that he may be allowed to file impleadment application for impleading Dr. Harivansh Kumar Pandey, who had initially made a complaint. Sri Awasthi, learned counsel is permitted to do so. The respondents are allowed one month time to file counter affidavit. List thereafter.” 9. During pendency of First Petition a further development took place when petitioner is being forced to retire at the age of 60 years, whereas according to petitioner the age of retirement of Director (Publication) is 62 years. The petitioner will attained age of 60 years on 30.11.2025, i.e. within few days. It was communicated through a Government Order dated 20.10.2024 whereby some Teachers were allowed to work upto the age of 62 years. 10. In aforesaid circumstances, petitioner has approached this Court by way of filing Writ-A No. 10489 of 2025, which was disposed of by following order dated 11.08.2025: “1. It was communicated through a Government Order dated 20.10.2024 whereby some Teachers were allowed to work upto the age of 62 years. 10. In aforesaid circumstances, petitioner has approached this Court by way of filing Writ-A No. 10489 of 2025, which was disposed of by following order dated 11.08.2025: “1. The instant writ petition has been filed seeking the following main prayers:- "i. Issue a writ, order or direction in the nature of Certiorari calling for the records of the case and to quash the impugned order dated 20.10.2024 passed by the respondent University (Annexure No.1 to the writ petition). ii. Issue a writ, order or direction in the nature of Mandamus commanding the respondents not to disturb the peaceful continuance of petitioner on the post of Director Publication in Sampurnanand Sanskrit University. Varanasi up till the completion of age of 62 years. iii. Issue a writ, order or direction in the nature of Mandamus commanding the respondents pay him salary month by month as and when same falls due strictly in accordance with law as is being paid to the petitioner regularly." 2. Learned counsel appearing on behalf of petitioner without entering into merits of the case, made an innocuous prayer that the petitioner may be permitted to file a fresh representation before respondent no.2 and a direction may be issued to him to decide the same in time bound manner. 3. Learned Standing Counsel appearing on behalf of the State- respondents vehemently opposed the writ petition on merits, but has not opposed the innocuous prayer as made by learned counsel appearing on behalf of the petitioner. 4. Heard Sri Prabhakar Awasthi, learned counsel appearing on behalf of the petitioner, Sri Saurabh, learned Standing Counsel appeared on advance accepted notice on behalf of the State-respondents, perused the contents made in the writ petition and the documents on record. 5. Without entering into merits of the case, I am inclined to allow the innocuous prayer made by learned counsel appearing on behalf of the petitioner as no objection made on behalf of learned Standing counsel appearing on behalf of State-respondents. Petitioner is directed to file a fresh representation along with present writ petition as well as certified copy of this order before respondent no.2 within one week from the date of production of certified copy of this order. Petitioner is directed to file a fresh representation along with present writ petition as well as certified copy of this order before respondent no.2 within one week from the date of production of certified copy of this order. After receiving the said representation, respondent no.2, Registrar, Sampurnanand Sanskrit University, Varanasi is directed to decide the said representation in accordance with law, expeditiously, preferably within a period of eight weeks from the date of receiving of the said representation. 6. With the aforesaid directions/observations, the present writ petition is disposed of.” 11. In pursuance of above order claim of petitioner to work upto the age of 62 years was considered, however, vide order dated 25.10.2025 passed by Registrar of University it was rejected and relevant part thereof is reproduced hereinafter: 12. This order is challenged by way of filing Writ-A No. 16997 of 2025 (hereinafter referred to as “Second Petition”). 13. Sri Shashi Nandan, learned Senior Advocate assisted by Sri Udayan Nandan, learned counsel for petitioner, referred the definition of ‘Teacher’ and ‘Director’ as mentioned in Section 2(7) and 2(19) respectively of U.P. State Universities Act, 1973 (hereinafter referred to as “Act, 1973”). For reference the same is reproduced hereinafter: “(7) “ Director” in relation, to an Institute, means the head of such Institute;” “(19) “ Teacher” in relation to the provisions of this Act except Chapter XI-A, means a person employed in a University or in an institute or in a constituent or affiliated or associated college of a University for imparting instructions of guiding or conducting research in any subject or course approved by that University and includes a Principal or Director; “University” means an existing University or a new University established after the commencement of this Act under Section 4;” 14. Learned Senior Advocate further referred a Government Order dated 25.07.2008 whereby the State has directed the Registrar of University that Governor has sanctioned the age of retirement of Director (Publication) to be 62 years in place of 60 years. For reference said Government Order dated 25.07.2008 is reproduced hereinafter: 15. Learned Senior Advocate also referred the judgment passed by this Court in earlier round of litigation, i.e., an order dated 25.07.2012 passed in Writ-A Nos. 56070 of 2008 and 3211 of 2010 as well as order dated 10.04.2014 passed in Writ-A No. 20833 of 2014 filed by Dr. For reference said Government Order dated 25.07.2008 is reproduced hereinafter: 15. Learned Senior Advocate also referred the judgment passed by this Court in earlier round of litigation, i.e., an order dated 25.07.2012 passed in Writ-A Nos. 56070 of 2008 and 3211 of 2010 as well as order dated 10.04.2014 passed in Writ-A No. 20833 of 2014 filed by Dr. Harivansh Kumar Pandey, whereby selection process of petitioner was challenged but it was failed. 16. Learned Senior Advocate further submitted that any subsequent event would not have any adverse effect on order of promotion of petitioner. Petitioner has worked as a Director (Publication) and according to relevant Ordinance, Department of Publication was established as a separate Department having a Director. He again referred the definition of ‘Teacher’ and ‘Director’, referred above in earlier paragraph of this judgment. 17. Learned Senior Advocate also mentioned that grounds mentioned in impugned order dated 25.10.2025 that Government Order dated 28.02.2011 whereby the age of retirement of Director (Publication) was considered to be 62 years in place of 60 years, was only a one time relaxation for the purpose of person having the said post at the relevant time, cannot be accepted as a submission on behalf of University since it would be unfair and would also be arbitrary. University cannot take a stand that it was only a one time direction, rather it ought to have been considered a direction for all other beneficiaries including the petitioner. 18. Per contra, Sri Sanjeev Singh, learned Senior Advocate assisted by Sri Utkarsh Tripathi, Advocate for Respondent-University, has vehemently opposed the aforesaid submissions and referred various documents that petitioner’s promotion from the post of Sales Officer to the post of Director (Publication) was absolutely dehors of rules. There was no such provision, except Government Order dated 31.12.2003 which was found a forged document upon an inquiry since the signature on it was found forged and accordingly it was cancelled by Government Order dated 17.09.2019 by State. Therefore, all its benefits or acts in pursuance of it would become null and void ab initio. Petitioner’s promotion itself become illegal, therefore, there is no question that he would retire at the age of 62 years. Though he fairly submits that there is no question of any recovery since petitioner has served as Director (Publication). The petitioner was not qualified for the post of Director (Publication). 19. Petitioner’s promotion itself become illegal, therefore, there is no question that he would retire at the age of 62 years. Though he fairly submits that there is no question of any recovery since petitioner has served as Director (Publication). The petitioner was not qualified for the post of Director (Publication). 19. Learned Senior Advocate though not able to deny that no fraud was played by petitioner for getting his promotion. He was not an instrumentality for creating the Government Order dated 31.12.2003 whereby a person having post of Sales Officer could be promoted on the post of Director (Publication). 20. Learned Senior Advocate also referred the above referred orders passed by this Court that in the order dated 23.10.2019 this Court has kept open to look into the matter, whether Government Order dated 31.12.2003 was a doubtful document or not. 21. Learned Senior Advocate also referred some documents placed during argument that by a Government Order dated 26.12.1995, whereby the post of Sales Officer was created, was only for the purpose of three years. He also referred that petitioner has applied only on the post of Sales Officer and has only the qualification for the said post. He further referred an Advertisement dated 12.01.2010 which was the subject matter of challenge in earlier round of litigation, has prescribed qualification for the post of Aacharya (Professor) and Director (Publication) as under: 22. Though learned Senior Advocate fairly submitted that by order of this Court the post was considered as a promotional post and it was not filled by a direct recruitment though essential qualification was not disturbed. 23. Learned Senior Advocate lastly referred para 10 of a judgment passed by Supreme Court in Rupa Rani Rakshit and others vs. Jharkhand Gramin Bank and others , (2010)1 SCC 345 which is reproduced hereinafter: “10. It is now well-settled that if an appointment or promotion is made without considering the claims of all the available eligible candidates and/or without following the relevant rules, the service rendered in pursuance of such illegal appointment or promotion cannot be equated to service rendered in pursuance of an appointment or promotion validly and lawfully made. Whenever a person is promoted to a post without following the rules prescribed for such promotion, he should be treated as a person not regularly promoted to that post. Whenever a person is promoted to a post without following the rules prescribed for such promotion, he should be treated as a person not regularly promoted to that post. Consequently, where promotions are governed by Rules, in computing the length of service, in the post to which an employee is promoted, it is not permissible to include the period of service rendered in pursuance of an illegal promotion which is subsequently set aside. It, therefore, follows that the period of service rendered by the appellants from 1990 to 2001 cannot be counted for the purpose of seniority in the cadre of Officers/Field Superiors. Therefore, the appellants in C.A. No.1789/2002 are also not entitled to any relief.” 24. I have heard learned Senior Advocates for parties at length and perused the material available on record as well as placed during hearing. 25. As referred above, there is no dispute that petitioner was appointed on the post of Sales Officer by an appointment order dated 18.09.1998 being qualified for the said post. Subsequently vide Government Order dated 31.12.2003 Director (Publication) became a promotional post from the post of Sales Officer and after some litigation before this Court and direction passed therein, the Executive Council of University by a unanimous decision dated 14.08.2012 adopted said Government Order dated 31.12.2003 and accepted the proposal of promotion from the post of Sales Officer to Director (Publication). Said resolution is still in existence and admittedly on basis of said resolution, petitioner was promoted on the post of Director (Publication) vide order dated 23.08.2012. 26. In aforesaid circumstances, the qualification as possessed by petitioner for the post of Sales Officer was considered to be sufficient for consideration of his promotion on the post of Director (Publication). It is not the case of petitioner that he possessed the qualification as prescribed in recruitment process initiated by University, referred in earlier part of this judgment and since the said procedure was become a subject matter of litigation before this Court and that it was held to be a post to be filled by promotion, therefore, direct recruitment did not proceed further for appointment on the post of Director (Publication). 27. 27. The stand of Respondent-University that petitioner is not qualified for the post of Director (Publication) since he does not possess qualification as prescribed for the post of direct recruitment, would not be applicable in the present case since admittedly petitioner is promoted to the post on basis of his qualification on which he was appointed on the post of Sales Officer, based on Government Order dated 31.12.2003 and resolution dated 14.08.2012. Therefore, to object the qualification of petitioner after so many years, when admittedly it is not a case of fraud, would be unjustified. 28. Now the other question is, what would be the effect of order dated 17.09.2019 whereby Government Order dated 31.12.2003 was cancelled being a forged document on basis of an inquiry. 29. Any argument on behalf of petitioner that said order can be set aside has no legs since petitioner could not submit that it was not a forged document and Court cannot dispute the outcome of an inquiry. Therefore, the Court proceed with a view that said document dated 31.12.2003 was a forged document and rightly cancelled by subsequent Government Order dated 17.09.2019 upon a detail inquiry. A challenge to it at the behest of petitioner thus fail. 30. In aforesaid circumstances, the other argument which can be considered, i.e., what would be the effect of impugned order dated 17.09.2019, i.e., whether it would operate retrospective so much as that promotion of petitioner on the post of Director (Publication) based on Government Order dated 31.12.2003 would be considered to be void ab initio from the date of initial promotion or w.e.f. 17.09.2019 or it would have no effect since effect of Government Order dated 17.09.2019 would be prospective. 31. According to learned Senior Advocate appearing for petitioner even in such circumstances the effect would be prospective and it would not have any adverse effect on petitioner and his promotion will remain intact. 32. Per contra, learned Senior Advocate appearing for Respondent- University has placed reliance on Supreme Court’s judgment in Rupa Rani Rakshit (supra) that if the basis of promotion goes, the order of promotion would itself become void ab initio being the consequential order as well as petitioner was not entitled for even consideration for promotion on the post of Director (Publication). 33. 33. I have considered the above submissions also and is of the opinion that it is not a case of fraud so far petitioner is concerned. The Government Order dated 31.12.2003 remained subject of litigations before this Court and this Court has not disturbed the said Government order as well as that said Government order was adopted by University by taking a resolution and only thereafter the promotion was made, therefore, any adverse consequence of Government Order dated 17.09.2019 would not fall on petitioner since it would remain prospective and it cannot be become a ground to snatch the promotion of the petitioner on the post of Director (Publication) after so many years since admittedly, it is not a case of fraud. 34. Present case can be distinguished from Rupa Rani Rakshit (supra) since therein the relevant rules were not followed despite they were in existence, whereas in the present case Government Order dated 31.12.2003 was adopted by the University which provides an avenue for Sales Officer for promotion on the post of Director (Publication). Therefore, it is not a case that despite petitioner was not qualified, he was promoted ignoring the prevalent rules. 35. Otherwise also, till date the resolution adopted by University as well as the order of promotion is not disturbed. The Court also takes note of contents of the Government Order dated 17.09.2019 that no proceedings be undertaken on basis of Government Order dated 31.12.2003. It does not direct that the proceedings already undertaken prior to said Government Order would become void ab initio. Therefore, the contents of it also shows that it is prospective in nature. University has also not taken any resolution on basis of said Government Order issued by Government. Therefore, also on basis of said Government Order dated 17.09.2019 promotion of petitioner cannot be disturbed. 36. Now the next issue is, whether petitioner being Director (Publication) would entitled to retire at the age of 60 years or 62 years. 37. In this regard I have perused the impugned order dated 25.10.2025 whereby claim of petitioner was rejected on two grounds. Firstly, that Government Order dated 31.12.2003 is cancelled. This ground does not survive since the Court has already protected promotion of petitioner. 37. In this regard I have perused the impugned order dated 25.10.2025 whereby claim of petitioner was rejected on two grounds. Firstly, that Government Order dated 31.12.2003 is cancelled. This ground does not survive since the Court has already protected promotion of petitioner. Second ground is that Government Order dated 28.02.2011 whereby the age of retirement was determined as 62 years in place of 60 years, was only a one time relaxation and was provided only for the person having the post in the year 2011. However, the Court is of the opinion that said reason does not have any legal basis since if the University give benefit to one person and deny to similarly situated other person, it would be an act of arbitrariness, i.e., a violation of Article 14 of the Constitution of India. Otherwise also, the University has to act in fairness and it cannot give advantage to one person and deny to another similarly situated person. The contents of said Government Order do not limit to one person. Word does not mean a person holding the post at relevant time. Otherwise, it is an order passed with the consent of the Governor, therefore, also it will apply to all beneficiaries. 38. Accordingly, impugned order dated 25.10.2025 in Second Petition is set aside and it is directed that petitioner will now retire after attaining the age of 62 years. In case Respondent-University proceed to pass any adverse order against petitioner despite above observations, they have to put petitioner on prior notice. 39. Both writ petitions are accordingly disposed of.