The judgment established the principle that unauthorized occupation of a public office without a formal appointment is not permissible, and highlighted the distinction between malice in fact and malice in law.

Sudhir Agarwal. J.

Heard learned counsels for parties and perused the record.

2. This is a strange case where a civil post/ public office has been allowed to be occupied, on substantive basis, by a person, who was never appointed on/in the said post/office. Moreover this arrangement has continued for long. The simple reason is that it relates to a neck depth involvement of wide spread corruption, permitting all kinds of irregularities, for petty personal gains of the officers of a department, in which, almost all (a few exceptions may be, but not better known) are working to encourage corruption, in well organized manner. In other words, an organized group of corrupt people(s), defeating every purpose of department concerned, not only siphoning off huge public revenue, in the form of salary and allowances, but simultaneously resulting in substantial loss to public in the hand of commercial dealers, and traders, using instruments having inaccurate standards of weights and measure.

3. A few facts which demonstrate and fortify this Court's observations above, may be narrated as under.

4. Petitioner was appointed as Prahri (Chowkidar) in the pay scale of Rs. 165-215/- vide order dated 12.1.1982, issued by Assistant Controller, Department of Weights and Measures, Agra (hereinafter referred t as "A.C.,W/M"). The aforesaid appointment was temporary and liable to be terminated at any point of time. He was transferred from Agra to Fatehabad with the designation of Messenger (Sandesh Vahak) by order dated 13.6.1986 passed by the Controller, Weights and Measures, U.P. Lucknow (respondent no. 2). Both these posts, i.e. Chaukidar and Sandesh Vahak are admittedly Class IV posts.

5. It, however, does not appear as to when and how he came to be posted as Laboratory Assistant (Prayogshala Parichar), but the department's officials, in their own way, helped him inasmuch the Deputy Controller, Weights and Measures, Agra Mandal, Agra (respondent no. 3) issued an order on 18.12.1992 giving next time scale to petitioner, on completion of 10 years of satisfactory service, on the post of Laboratory Assistant (Prayogshala Parichar). The aforesaid benefit was allowed with effect from 16.1.1992 pursuant to Government Order dated 3.6.1989. Thereafter, respondents 2 and 3 proceeded further by issuing another order dated 2.12.2002, whereby petitioner was confirmed as a Class IV employee, on the post of Laboratory Assistant (Prayogshala Parichar), with effect from 16.3.1985. There are several other persons who were also confirmed by the same order, on the post of Messenger and Chowkidar, as the case may be. Respondents 2, 3 and 6 went ahead by treating petitioner's appointment as Laboratory Assistant (Prayogshala Parichar) since 16.1.1982, and, on completion of 14 years of service, granted him first promotional scale of Rs. 2610-3540 with effect from 16.1.1996 vide order dated 31.12.2002. Petitioner then was transferred as Laboratory Assistant from Agra to Sadabad, Mathura vide order dated 24.2.2003. On completion of 19 years of service on the post of Laboratory Assistant, respondents granted him second time scale vide order dated 15.3.2003 with effect from 16.1.2001.

6. Petitioner was transferred from Fatehabad to Mathura as Laboratory Assistant by order dated 28.5.2008. Respondent no. 2 thereafter somehow found that petitioner's post/cadre/designation was altered without any letter of appointment to this effect and there was no sanctity for such change, hence, passed an order dated 7.11.2008, recalling order dated 13.6.1986 and directing that petitioner shall continue to function on the substantive post on which he was appointed, i.e. Chowkidar (Prahri). It is this order which has been assailed in this writ petition.

7. It is also said that a similar order was passed in respect to two other persons, namely, Chandra Prakash and Ramakant Sharma, who challenged the same in a writ petition which was dismissed by Hon'ble Single Judge and thereagainst Sp