Hanuman Singh 8919(S/S)1993 vs State Of ...
2017 Latest Caselaw 7590 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved on 10.11.2017
 
Delivered on 04.12.2017
 
Court No. - 7
 

 
Case :- SPECIAL APPEAL No. - 259 of 2015
 

 
Appellant :- Hanuman Singh 8919(S/S)1993
 
Respondent :- State Of U.P.Throu.Prin.Secy.Deptt.Of Madhyamik Edu.& Ors.
 
Counsel for Appellant :- Sudhir Kumar Misra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Anil Kumar,J.

Hon'ble Daya Shankar Tripathi,J.

(Delivered by Hon'ble D.S. Tripathi, J.)

1. Heard Sri Sudhir Kumar Misra, learned counsel for the appellant and Sri Vikas Singh, learned State Counsel.

2. Facts of the case, as submitted by learned counsel for the appellant/petitioner, in brief, are that the appellant/petitioner was appointed to the post of KURSI BUNKAR in the office of Director Education, Uttar Pradesh Camp Office, Lucknow on Class-IV post in pay scale of Rs. 750-940, vide order dated 10.05.1993. His services were terminated vide order dated 28.09.1993 passed by Additional Director of Education (Secondary), Uttar Pradesh.

3. Being aggrieved, the appellant/petitioner approached this Court for redressal of his grievances, by way of filing Writ Petition No. 8919 (S/S) of 1993 (Hanuman Singh Vs. Sate of U.P. and others).

4. After exchange of pleadings between the parties and providing opportunity of hearing to both the parties, aforesaid writ petition has been dismissed vide order dated 17.04.2015, passed by learned Single Judge, which is under challenge to this special appeal.

5. Learned counsel for the appellant submitted that the appellant/petitioner was appointed to the post of KURSI BUNKAR vide order dated 10.05.1993 and he was performing his duties satisfactorily. Services of the appellant/petitioner have been dismissed by the officer respondent vide order dated 28.09.1993, without following procedure and without affording any opportunity of hearing to him. He further submitted that the termination order was stayed by the writ court and the appellant/petitioner is performing his duties continuously from a long period. He further submitted that the appellant/petitioner has been paid salary in lieu of duties discharged by him, hence order of recovery of salary in pursuant to ex-parte interim order passed by the writ court, is illegal. He lastly submitted that learned Single Judge has committed legal error in dismissing the writ petition, hence the special appeal is liable to be allowed.

6. Learned counsel for the respondents while supporting the impugned judgment passed by the learned Single Judge, submitted that appointment order of the appellant/petitioner to the post of KURSI BUNKAR was purely on temporary basis and it could be terminated at any time. He further submitted that there was no requirement for adopting any procedure to terminate the services of the appellant/petitioner. He further submitted that appellant/petitioner cannot claim any right on the strength of interim order passed by the writ court. His last submission is that there is no infirmity in the impugned judgment and order passed by the learned Single Judge, hence the special appeal is liable to be dismissed.

7. We have heard arguments advanced by learned counsel for both the parties and perused the material placed on record.

8. From perusal of record, the position which emerges out to the effect is that the appellant/petitioner was appointed to the post of KURSI BUNKAR vide order dated 10.05.1993, purely on the temporary basis. This appointment order has not been issued in furtherance of any advertisement. The appointment order does not indicate that any procedure for selection was adopted by the Department.

9. The appointment of Class-IV employees is governed by the Group 'D' Employees Service Rules, 1985 (hereinafter referred to as the 'Rules'). Rule 23 of the Rules provides procedure for appointment of Class-IV employees. But no procedure whatsoever has been adopted for appointment of appellant/petitioner.

10. In M.P. Co-operative Bank Ltd. v. Nanuram Yadav and others reported in (2007) 8 SCC 264, it has been held by the Apex Court that appointments made without adopting the appropriate procedure under the Rules, would amount to breach of Articles 14 and 16 of the Constitution of India. Relevant portion of the report is reproduced below:-

" It is clear that in the matter of public appointments, the following principles are to be followed:

(1) The appointments made without following the appropriate procedure under the rules/Government circulars and without advertisement or inviting applications from the open market would amount to breach of Articles 14 and 16 of the Constitution of India.

(2) Regularisation cannot be a mode of appointment.

(3) An appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation.

(4) Those who come by back door should go through that door.

(5) No regularisation is permissible in exercise of the statutory power conferred under Article 162 of the Constitution of India if the appointments have been made in contravention of the statutory rules."

11. In Secretary, State of Karnakata and others Vs. Umadevi and others reported in (2006) 4 SCC 1, it has been held by the Apex Court that if selection of any person is not based on proper selection, he cannot invoke the theory of legitimate expectation for being confirmed. Relevant portion of the report is reproduced below:-

"38. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post"

12. In the light of aforesaid principles laid down by the Apex Court in the cases of M.P. Co-operative Bank Ltd. (supra) and Secretary, State of Karnakata and others (supra), termination order passed against the appellant/petitioner cannot be held to be illegal, as the appellant/petitioner was appointed without adopting prescribed procedure for appointment under the Rules.

13. As far as continuation in service of the appellant/petitioner on strength of interim order passed by the writ court is concerned, this issue was also raised by the appellant/petitioner before the writ court and relying upon several judgments of this Court as well as judgment of the Apex Court, it has been held by the learned Single Judge that continuation on the post on the basis of interim order, would not confer any right to the appellant/petitioner. Relevant portion of the findings recorded by the learned Single Judge are reproduced below:-

"9. A Division Bench of this Court presided by Hon'ble C.K. Prasad, C.J. (as His Lordship then was), while rejecting the claim of appellant to continue in service on the basis of long continuance pursuant to an interim order passed by this Court, in Special Appeal No. 1818 of 2009 (Farhat Jahan Vs. State of U.P. and others) decided on 26.11.2009 observed as under:

"She had continued in service by virtue of an interim order passed by this Court. This continuance of the petitioner during the pendency of the writ petition is a litigious continuance in service, which will not enure to her benefit. The Division Bench of this Court had the occasion to consider this question in Special Appeal No.926 of 2002 (Sunil Kumar Vs. The Regional Assistant Director of Education (Basic), 12 Circle, Moradabad), which reads as follows

"Having appreciated the rival submission, we do not find any substance in the submission of Mr. Saxena and the decision relied on shall have no bearing in the facts of the present case. As stated earlier, the petitioner was appointed by order dated 22.4.1987 on temporary basis and the order of appointment clearly indicated that his service can be terminated without any notice or prior information. His service was terminated in exercise of power under Rule 3 of the Rules 1975 by order dated 5.9.1988. Petitioner has, nowhere, averred as to the process of appointment, which was followed while giving him temporary appointment. True it is that by virtue of interim orders passed by this court, he continued in service but such continuance is nothing but a "litigious employment". Once it is held so, mere continuance in service for a long period would not clothe him with any right. The view, which we have taken, finds support from the judgement of the Supreme Court in the case of Umadevi (supra) as also Surindra Prasad Tiwari (supra)."

In view of aforesaid, we are of the opinion that the litigious continuance in service shall not enure to her benefit."

10. It is well established that act of the court shall prejudice none. The service rendered pursuant to an interim order would not give any benefit to petitioner. This issue has also been considered by a Division Bench of this Court (in which I was also a member) in Smt. Vijay Rani Vs. Regional Inspectress of Girls Schools, Region-1, Meerut and others, 2007(2) ESC 987 and the Court held as under:

"An interim order passed by the Court merges with the final order and, therefore, the result brought by dismissal of the writ petition is that the interim order becomes non est. A Division Bench of this court in Shyam Lal Vs. State of U.P. AIR 1968 Allahabad 139, while considering the effect of dismissal of writ petition on interim order passed by the court has laid down as under:

"It is well settled that an interim order merges in the final order and does not exist by itself. So the result brought about by an interim order would be non est in the eye of law if the final order grants no relief. The grant of interim relief when the petition was ultimately dismissed could not have the effect to postponing implementation of the order of compulsory retirement. It must in the circumstances take effect as if there was no interim order."

11. The same principle has been reiterated in the following cases:

(A)AIR 1975 Allahabad 280 Sri Ram Charan Das V. Pyare Lal.

"In Shyam Lal Vs. State of U.P., AIR 1968 All 139 a Bench of this Court has held that orders of stay of injunction are interim orders that merge in final orders passed in the proceedings. The result brought about by the interim order becomes non est in the eye of law in final order grants no relief. In this view of the matter it seems to us that the interim stay became non est and lost all the efficacy, the commissioner having upheld the permission which became effective from the date it was passed."

(B)1986 (4) LCD 196 Shyam Manohar Shukla V. State of U.P.

"It is settled law that an interim order passed in a case which is ultimately dismissed is to be treated as not having been passed at all (see Shyam Lal V. State of Uttar Pradesh) Lucknow, AIR 1968 Allahabad 139 and Sri Ram Charan Das v. Pyare Lal, AIR 1975 Allahabad 280 (DB)."

(C) AIR 1994 Allahabad 273 Kanoria Chemicals & Industries Ltd. v. U.P. State Electricity Board.

"After the dismissal of the writ petitions wherein notification dated 21.4.1990 was stayed, the result brought about by the interim orders staying the notification, became non est in the eye of law and lost all its efficacy and the notification became effective from the beginning."

12. In Raghvendra Rao etc. Vs. State of Karnataka and others, JT 2009 (2) SC 520 the Apex Court has observed:

"It is now a well-settled principle of law that merely because an employee had continued under cover of an order of Court, he would not be entitled to any right to be absorbed or made permanent in the service. ............."

14. In the light of aforesaid principles laid down by this Court and the Apex Court, the appellant/petitioner is not entitled for any right to continue on the post on the strength of interim order passed in the writ petition.

15. As far as order of recovery of salary of the appellant/petitioner in pursuant to ex-parte interim order, passed by the learned Single Judge is concerned, salary has been paid to the appellant/petitioner in lieu of duties discharged by him, hence no recovery can be made from the appellant/petitioner as he has already discharged his duties on the strength of interim order.

16. For all the reasons recorded hereinabove, the special appeal deserves to be partly allowed.

17. Accordingly, the special appeal is partly allowed. No recovery of salary from the appellant/petitioner in pursuant to ex-parte interim order shall be made. To that extent, the impugned order dated 17.04.2015 passed by the learned Single Judge stands modified.

Order Date :- 04.12.2017

SR

[Daya Shankar Tripathi, J.] [Anil Kumar, J.]