Ashok Kumar Maurya 5518(S/S)1993 vs District Magistrate Faizabad
2017 Latest Caselaw 8103 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved
 
Court No. - 7
 

 
Case :- SPECIAL APPEAL No. - 578 of 2015
 

 
Appellant :- Ashok Kumar Maurya 5518(S/S)1993
 
Respondent :- District Magistrate Faizabad
 
Counsel for Appellant :- Abdul Razzaque Khan,Aasif Razzaque Khan
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Anil Kumar,J.

Hon'ble Daya Shankar Tripathi,J.

Heard Sri Abdul Razzaque Khan, learned counsel for the appellant and Sri Satish Kumar Tripathi, learned Standing Counsel .

By means of present appeal , the appellant has challenged the order dated 28.9.2015 passed by learned Single Judge in Writ Petition no.5518 (SS) of 1993 ( Ashok Kumar Maurya Vs. District Magistrate, Faizabad and another).

Facts, in brief, of the present case are that in the office of District Supply Officer, Faizabad one post of peon was fallen vacant due to retirement of one Sri Ram Dutt Dubey, a class IV employee.

By order dated 7.5.1993, the appointing authority/ District Magistrate, Faizabad appointed the appellant/Ashok Kumar Maurya on the said post temporarily.

Subsequently by order dated 28/29.6.1993 his services were terminated, challenged by filing Writ Petition No. 5518 (SS) of 1993 ( Ashok Kumar Maurya Vs. D.M. Faizabad and another) .

On 23.8.1993 an interim order was passed , the operative portion of the same reads as under:-

" In the meantime, the operation of the impugned order dated 28/29.6.1993 shall remain stayed. The opposite parties are directed to permit the petitioner to continue his services and to pay his salary."

In pursuance of interim order/stay order dated 23.8.1993, petitioner was allowed to work and discharge his duties on the post of peon.

By order dated 28.9.2015, writ petition no.5518 (SS) of 1993 was dismissed with an observation that admittedly continuance to serve under an interim order would not confer any benefit upon petitioner. It is well established that act of court shall prejudice none so the services rendered pursuant to an interim order would not give any benefit to the petitioner and reliance has been placed on a judgment of Division Bench of this Court in Smt. Vijay Rani Vs. Regional Inspectress of Girls Schools, Region-1, Meerut and others, 2007(2) ESC 987 wherein it has been 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."

Learned Single Judge ha further relied upon the following judgments:-

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

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

		(C) AIR 1994 Allahabad 273 Kanoria Chemicals & Industries 			      Ltd. v. U.P. State Electricity Board.
 
	(D) Raghvendra Rao etc. Vs. State of Karnataka and  others,       	       JT 2009 (2) SC 520
 
	(E) Secretary, State of Karnataka Vs. Uma Devi, 2006 (4) 	     	      SCC 1
 

Sri Abdul Razzaque Khan, learned counsel for the appellant while challenging the impugned orders submits that appellant submitted his candidature for appointment on class-IV post fallen substantively vacant on retirement of Sri Ram Dutt Dubey.

Appellant was appointed against Class-IV post, however his services were terminated by order dated 28/29.6.1993, challenged by filing Writ Petition No.5518 (SS) of 1993. This Court was pleased to stay the order of termination and in pursuance thereto he was allowed to continue to work and discharge the duties till the date of passing of the impugned order by which writ petition was dismissed, so the same is illegal and contrary to law because the appellant was transferred like regular employee from one place to another place and given regular salary, so he is entitled for regularization on the post in question.

In support of his contention he has placed reliance on the judgments given by Hon'ble Apex Court in the case of Bhagwati Prasad Vs. Delhi State Mineral Development Corporation (1990) 1 SCC 361 and Gujrat Agriculatural University Vs. Rathod Labhu Bechar and others, (2001) 3 SCC 574 and the judgment and order dated 28.3.2017 passed by Division Bench of this Court in Special Appeal No.517 of 2005 ( State of U.P. and others Vs. Bal Krishna Bhatnagar) in which it has been held as under:-

"The respondents are working since 1993 we are in 2017 about 23 years have passed. The service of respondents have not only been regularized but have been given promotion and seniority list has also been annexed with the rejoinder affidavit. Their names have been shown in the senior list. The Court feels that at this belated stage no interference ought to be made with life and working of the respondents.

These three special appeal have been filed against the same order of Hon'ble Single Judge, hence, all special appeals are have decided by a common order. The special appeals have lost its efficacy due to efflux of time, therefore, it is dismissed.

These special appeals were pending since 2005 with complicated question of fact, the Court appreciates the efforts made by the brief holder Ms. Madhurima Bhargava for getting the matter decided and assisting the Court."

Accordingly, Sri Abdul Razzaque Khan, learned counsel for the appellant submits that the order passed by learned Single Judge is liable to be set aside.

As per admitted facts of the present case, a vacancy occurred in the office of District Supply Officer, Faizabad, by order dated 7.5.1993 passed by District Magistrate, Faizabad , appellant was appointed on the post of Peon and by order dated 28/29.6.1993 his services were terminated.

Thereafter he filed Writ Petition no.5518 (SS) of 1993 in which an interim order was granted by this Court and in pursuance to which he was continuing on the post of Peon.

The writ petition filed by the petitioner/ appellant was dismissed on the ground that the appellant was appointed on the post of Peon in the office of District Supply Officer, Faizabad, without following any rules or procedure which governs the field rather the same has been given de-hors to rules.

Accordingly, the core question is to be considered that if the appellant is working in pursuance of stay order since 1993 to 2015, as argued by learned counsel for the appellant, he is entitled for regularization or not.

In the law Lexicon (at page 180) "stay order" is defined as under:-

"The stay of operation of an order only means that the order which has been stayed would not be operative form the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. Shree Chamundi Mopeds Ltd. V. Church of South India Trust Association, Madras, AIR 1992 SC 1439, 1444 (Constitution of India Art. 226)

In Words and Phrases (permanent Edition) Vol -40 page 374, the "stay order" is defined as"

"A "stay order" or a "stay of proceedings," is a stopping, the act of arresting a judicial proceeding by the order of a court or the temporary suspension of the regular order of proceedings in a cause by direction or order of the court."

Hon'ble the Supreme Court in the case of Shree Chamundi Mopeds Ltd. V. Church of South India Trust Association, Madras, (1992) 3 SCC 1, has interpreted the word stay order in the following terms:

"While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence."

Hon'ble the Apex Court in the case of Kanoria Chemicals & Industries Vs. U.P. State Electricity Board, (1997) 5 SCC 772 explained the meaning of the word stay order as under:-

"It is equally well settled that an order of stay granted pending disposal of a writ petition/suit or other proceeding, comes to an end with the dismissal of the substantive proceeding and that it is the duty of the court in such a case to put the parties in the same position they would have been but for the interim order of the court."

Hon'ble the Apex Court in the case of B.P.L. Ltd. and ors. Vs. R. Sudhakar and ors., 2004 (7) SCC 219, after placing reliance on its earlier judgment in the case of Ravi S. Naik v. Union of India and Others (1994) Supp (2) SCC641, in para No. 14 held as under:-

"Dealing with the staying of the operation of the order of disqualification, passed by the Speaker of the Assembly in regard to two members of the House, this Court held that the order of disqualification made by the Speaker dated 13.12.1990 was not operative and consequently it could not be said that they were not members of Goa Assembly. The Court, looking to the terms of the interim order and its effect on the disqualification of the members on the relevant date, held, it is settled law that an order, even though interim in nature, is binding till it is set aside by a competent court". Similarly, in the present case also looking to the terms of the interim order granted by the High Court staying the very operation of order of reference it could not be said that dispute was pending before the Tribunal on the relevant date, viz., the date on which the workmen were dismissed from service."

In the case of State of Gujrat and others Vs. Dilipbhai Shaligram Patil, (2006) 8 SCC 72, Hon'ble the Apex Court in para Nos. 5 and 7 held as under:-

"Para No. 5 - It is well settled that an order granting pending disposal of the writ petition/suit or other proceedings, comes to an end with the disposal of the substantive proceedings and that it is the duty of the Court in such a case to put the parties in the same position, they would have been but for the interim orders of the Court. Any other view would result in the act or order of the court prejudicing the party for no fault of his and would also mean rewarding writ petitioner in spite of his failure. Any such unjust consequence cannot be countenanced by the courts. [(See Kanoria Chemicals and Industries Ltd. v. U.P. State Electricity Board and Ors. 1997 (5) SCC 772)]

"Para No. 7 - Merely because an interim order had been passed pursuant to which reinstatement had been done, that cannot be a ground for allowing relief. (See Union of India v. Narender Singh (2005 (6) SCC 106)."

In the case of Kalabharati Advertising Vs. Hemant Vimalnath Narichania and others (2010)9) SCC 437, Hon'ble the Apex Court in para Nos. 15 and 16 held as under:-

"Para No. 15 - No litigant can derive any benefit from the mere pendency of a case in a Court of Law, as the interim order always merges into the final order to be passed in the case and if the case is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting an interim order and thereafter blame the Court. The fact that the case is found, ultimately, devoid of any merit, or the party withdrew the writ petition, shows that a frivolous writ petition had been filed. The maxim "Actus Curiae neminem gravabit", which means that the act of the Court shall prejudice no-one, becomes applicable in such a case. In such a situation the Court is under an obligation to undo the wrong done to a party by the act of the Court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised, as the institution of litigation cannot be permitted to confer any advantage on a party by the delayed action of the Court. (vide: Dr. A.R. Sircar v. State of Uttar Pradesh & Ors., 1993 Supp. (2) SCC 734; Shiv Shanker & Ors. v. Board of Directors, Uttar Pradesh State Road Transport Corporation & Anr., 1995 Supp. (2) SCC 726; the Committee of Management, Arya Inter College, Arya Nagar, Kanpur & Anr. v. Sree Kumar Tiwary & Anr., AIR 1997 SC 3071; GTC Industries Ltd. v. 10 Union of India & Ors., AIR 1998 SC 1566; and Jaipur Municipal Corporation v. C.L. Mishra, (2005) 8 SCC 423).

Para No. - 16 - In Ram Krishna Verma & Ors. v. State of U.P. & Ors., AIR 1992 SC 1888, this Court examined the issue while placing reliance upon its earlier judgment in Grindlays Bank Limited v. Income Tax Officer, Calcutta & Ors., AIR 1980 SC 656 and held that no person can suffer from the act of the Court and in case an interim order has been passed and the petitioner takes advantage thereof, and ultimately the petition stands dismissed, the interest of justice requires that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralized."

The position which is emerge out is that by merely passing of a stay order the operation of the order which is under challenge is kept in abeyance/non-operative from the date when the stay order is passed but it does not mean that the effect of the said order is nullified or wiped out and stay order finally merged in the final decision given in the matter in question in which the same is passed.

Thus, the appellant who is working on the post of Peon in terms of interim order does not get any right or any benefit when his writ petition was finally decided and the relief which is sought in appeal has to be examined independently and not to be guided by interim order/ stay order passed in his favour.

In the instant case, appointment of the appellant on the post of Peon is not in accordance with law rather the same is back door entry, de hors to rules which does not confer any legal right to him what so ever because Hon'ble the Apex Court in the case of State of M.P. and others Vs. Yogesh Chandra Dubey and others (2006) 8SCC 67 has held as under:-

"It is neither in doubt nor in dispute that the respondents were not appointed in terms of the statutory rules. Their services were taken by the officers only to meet the exigencies of situation. No post was sanctioned . Vacancies were not notified. It is now trite that a State within the meaning of Article 12 of the Constitution of India, while offering public employment, must comply within the constitutional as also statutory requirements. Appointments to the posts must be made in terms of the existing rules. Regularization is not a mode of appointment . If any recruitment is made by way of regularization , the same would mean a back door appointment , which does not have any legal sanction."

In the case of National Fertilizers Limited and others Vs. Somvir Singh (2006) 5 SCC 493 Hon'ble the Apex Court has held as under:-

" The constitution Bench thought of directing regularization of the services only of those employee whose appointments were irregular as explained in State of Mysore Vs. S.V. Narayanappa, AIR 1967 SC 1071, R.N. Nanjundappa Vs. T. Thimmiah (1972) 1 SCC 409 and B.N. Nagarajan Vs. State of Karnataka (1979) 4 SCC 507 wherein this Court observed :-

" In B.N. Nagarajan Vs. State of Karnataka (supra) this Court clearly held that the words ''regular' or ''regularization' do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments."

Hon'ble the Apex Court in the case of State of M.P. and others Vs. Lalit Kumar Verma, (2007) 1 SCC 575 has held as under:-

"The question which, thus, arises for consideration, would be : Is there any distinction between 'irregular appointment' and 'illegal appointment'? The distinction between the two terms is apparent. In the event the appointment is made in total disregard of the constitutional scheme as also the recruitment rules framed by the employer, which is State within the meaning of Article 12 of the Constitution of India, the recruitment would be an illegal one; whereas there may be cases where, although, substantial compliance of the constitutional scheme as also the rules have been made, the appointment may be irregular in the sense that some provisions of some rules might not have been strictly adhered to.

In National Fertilizers Ltd. vs. Somvir Singh [(2006) 5 SCC 493], it has been held :

"The contention of the learned counsel appearing on behalf of the respondents that the appointments were irregular and not illegal, cannot be accepted for more than one reason. They were appointed only on the basis of their applications. The Recruitment Rules were not followed. Even the Selection Committee had not been properly constituted. In view of the ban on employment, no recruitment was permissible in law. The reservation policy adopted by the appellant had not been maintained. Even cases of minorities had not been given due consideration."

In the case of Punjab State Warehousing Corporation Vs. Manmohan Singh and another (2007) 9 SCC 337 Hon'ble the Supreme Court has held as under:-

" This aspect of the matter is covered by a decision of this Court in A. Umarani Vs. Registrar, Corporation Societies (2004) 7 SCC 112 where in the law was stated in the following terms:

" No regularization is , thus, permissible in exercise of the statutory ( Sic executive) power conferred under Article 162 of the Constitution if the appointments have been made in contravention of the statutory rules."

A Constitution Bench of this Court in Secretary, State of Karnataka Vs. Umadevi (2006) 4 SCC 1 categorically held that any appointment made in violation of the constitutional scheme would be a nullity."

So the arguments as raised by Sri Abdul Razzaque Khan, learned counsel for the appellant that the appellant is working and discharging his duties since 1993 till passing of the order dated 28.9.2015 and he has been transferred as regular employee from one post to another and also paid salary, so his service ought to have been regularized, as such the order passed by learned Single Judge dismissing the writ petition is without jurisdiction has got no force. Accordingly, we do not find any illegality or infirmity in the judgment and order dated 28.9.2015 passed by learned Single Judge in Writ Petition No. 5518 (SS) of 1993 (Ashok Kumar Maurya Vs. District Magistrate, Faizabad and another) whereby dismissing the writ petition preferred against the impugned order dated 28/29.6.1993 by which appellant's services were terminated .

In the result, the appeal lacks merit and is dismissed.

(Daya Shankar Tripathi,J.) ( Anil Kumar,J.)

Order Date :- 19.12.2017

dk/