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Shyam Chandra Pathak v/s U.P. State Food And Essential Commodities Corporation

    Writ - A No. 20633 of 1988
    Decided On, 03 February 2012
    At, High Court of Judicature at Allahabad
    By, THE HONOURABLE MR. JUSTICE SUDHIR AGARWAL
    For the Appearing Parties: Janardan Sahai, Advocate.


Judgment Text
1. HEARD learned Counsel for petitioner and Sri Srikant Shukla for respondents 1 and 2.

2. PETITIONER was engaged on purely ad hoc basis and by means of impugned order he has been terminated since his services were no longer required.

Learned counsel for petitioner relied on judgments of this Court in Civil Misc. Writ Petition No. 12974 of 1987 (V.K. Gupta Vs. Regional Manager, U.P.) decided on 8.11.2005, Civil Misc. Writ Petition No. 21346 of 1999 (Dinesh Singh Vs. U.P. State Food And Essential Commodities Corporation Ltd. decided on 5.1.2006, Civil Misc. Writ Petition No. 24833 of 1988 decided on 14.2.2006 and Civil Misc. Writ Petition No. 2193 of 1989 Rajendra Singh Vs. U.P. State Food and Essential Commodities Corporation Ltd. decided on 23.3.2006 and contended that since he has worked for long time pursuant to an interim passed by this Court in the present case, he should be allowed to continue.

Firstly I come to the merits of case as to whether petitioner is entitled for relief or not. This issue in a similar matter has been considered by this Court in Civil Misc. Writ Petition No. 9826 of 1990 Shree Prakash Misra Vs. State of U.P. & others) decided on 14.9.2009 and it has been held as under:

"4. From the facts narrated in the writ petition, however, it appears that the petitioner was appointed as a seasonal clerk on ad hoc basis for a period of three months in U.P. State Food and Essential Commodities Corporation Ltd, (hereinafter referred to as the "Corporation") and posted at Sewarhi Purchase Centre. Thereafter he was further employed for another period of three months by order dated 15.01.1985 and so on. After amendment of the U.P. Regularisation of Ad hoc Appointments (on Posts Outside the Purview of the Public Service Commission), Rules 1979 (hereinafter referred to as the "1979 Rules") and extension of the cutoff date as 01.10.1986 the petitioner claimed regularisation and it appears that the Deputy Finance Manager (Purchase) made a recommendation on 14.06.1998 for sanction of a post whereagainst the petitioner may be considered for regularisation and thereafter this writ petition has been filed.

5. Admittedly, from the facts stated in the writ petition it is evident that there was no post available whereagainst the petitioner could have been appointed or regularised or made permanent in service. It further appears that seeking a similar relief some other writ petitions were filed and one of such is Civil Misc. Writ Petition No. 20398 of 1988, Rakesh Kumar Saxena Vs. U.P. State Food and Essential Commodities Corporation Ltd. and others, which was dismissed by this Court vide judgment dated 26.10.2006 and the said judgment of Hon'ble Single Judge has been confirmed in Special Appeal No. (7) of 2008, Tek Chand and others Vs. U.P. State Food and Essential Commodities Corporation Ltd. and others, dismissed on 07.01.2008.

6. It is well settled that in the absence of any post neither the question of regularisation nor permanence is permissible. Besides the appointment made for a fixed term or ad hoc appointment does not confer any right upon the incumbent concerned to claim regularisation unless it is provided under the statutory rules. The judgment of this Court in Jai Kishan (supra) has no application to the facts of this case inasmuch as this aspect has already been considered by a Division Bench of this Court in Dukhi Singh Vs. State of U.P. and others, 2007(4) ADJ 186 and it has been held that was a case decided in the absence of any defence taken by the respondents, and it has no universal application to other matters. The validity of cutoff date prescribed under 1979 Rules has already been upheld by this Court in several cases. In Subedar Singh and others v. District Judge, Mirzapur and another, 2001 (1) AWC 287 (SC) the Hon'ble Apex Court confirmed the judgment of a Division Bench of this Court upholding the cut of date as 1.10.1986 fixed under the U.P. Regularization of Ad hoc Appointment (On Posts outside the Purview of U.P. Public Service Commission) Rules, 1979, as amended by Second (Amendment) Rules, 1989 where this Court held as under:

".......One of the relevant considerations for regularisation is the length of the service rendered by the ad hoc employee ... but we see no rationale behind the view that all the employees even if they had put in only one day of service as ad hoc should have been made eligible to be considered and, therefore, the cutoff date specified in Rule 10 is irrational.

.... What should be the length of service is a matter of policy to be decided by the Rule making authority. Further, length of service is not the only criterion to be taken into consideration while making such decision. There can be no rule of thumb in such matters. It is not beyond the competence of the Rule making authority to limit eligibility to the employees who joined service as ad hoc employees upto a specified date..."

7.The judgment of this Court was confirmed by the Hon'ble Apex Court on merit, agreeing with the reasoning and the conclusion given in the judgment, as is apparent from para 3 of the judgment, in Subedar Singh (supra) wherein the Hon'ble Apex Court held as under:

"... The High Court has examined all the contentions by a detailed discussion of the relevant provisions of the Rules and we do not find infirmities with the reasoning and conclusions of the High Court in the impugned judgment. No rule, law or regulation, nor even any administrative order had been shown to us on the basis of which the appellants could claim the right of regularisation, in the aforesaid premises, we do not find any merit in any of these appeals which accordingly stands dismissed but in the circumstances, there will be no order as to costs."

8. Again the cut of date of 30.6.1998 provided in U.P. Regularization of Ad hoc Appointment (on posts outside the Purview of U.P. Public Service Commission) Rules, 1979, as amended in 2001 came up for consideration before a Hon'ble Single Judge in Shivaji Singh and others v. High Court of Judicature at Allahabad and others, Civil Misc. Writ Petition No.52755 of 2002 decided on 8.8.2003 and the Hon'ble Single Judge upheld the aforesaid cut of date. The matter went in Special Appeal No.705 of 2003 and upholding the cut of date a Division Bench held as under:

"It further observed that the proposed amendment substituting the cutoff date did not create two classes of persons. It created only one class of persons who possessed requisite qualification for regular appointment at the time of ad hoc appointment and had been directly appointed on ad hoc basis on or before 30.6.1998 and was continuing on service as such on 20.12.2001 and had further completed 3 years of service. From the scheme underlying the amendment only one class of person had been taken up for consideration for regularisation i.e. a person who filled all the 3 conditions given in Rule 4 of the Rules 2001."

9. Following the aforesaid two judgments another Division Bench of this Court in Vinita Singh and others v. State of U.P. and others, 2006 (2) AWC 1738 has upheld the cut of date 30.6.1998 provided U.P. Regularization of Ad hoc Appointment (on posts within the Purview of U.P. Co-operative Institutional Service Board) Regulation 1985, as amended vide notification dated 24.3.1993. 10. Besides, the matter is also covered by the decisions of this Court in Rakesh Kumar Saxena (supra) and Tek Chand (supra). The writ petition, therefore, lacks merit and is accordingly dismissed. Interim order, if any, stands vacated.'

3. LEARNED counsel for petitioner could not make any submission to distinguish the aforesaid judgment.

So far as Judgment of Hon'ble Single Judge relied by learned counsel for petitioner are concerned, all the judgments have been rendered before 10.4.2006 on which date Constitution Bench of Apex Court rendered decision in Secretary, State of Karnataka Vs. Uma Devi, 2006 (4) SCC 1 and held that all the judgments contrary thereto stand overruled and thus those judgments are no more applicable in view of aforesaid Constitution Bench Judgment. Moreover, it is also well settled that benefit of interim order cannot be extended in case ultimately petitioner is not successful in establishing his right. The service rendered pursuant to an interim order would not give any benefit to petitioner. This issue has been considered by a Division Bench of this Court (in which I was also a member) in Smt. Vijay Rani Vs. Regional Inspector’s 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 nonest. 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 nonest 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."

4. THE same principal 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 nonest 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 All 139 and Sri Ram Charan Das v. Pyare Lal, AIR 1975 All 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."

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

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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. ............." So far as the service rendered by petitioner for long time is concerned, it is well settled that long continuance, if the appointment has not been made strictly in accordance with law, would not confer any right upon incumbent to hold the post. The Apex Court in Shesh Mani Shukla (supra) J.T. 2009 (10) SC 309 held: "It is true that the appellant has worked for a long time. His appointment, however, being in contravention of the statutory provision was illegal, and, thus, void ab initio. If his appointment has not been granted approval by the statutory authority, no exception can be taken only because the appellant had worked for a long time. The same by itself, in our opinion, cannot form the basis for obtaining a writ of or in the nature of mandamus; as it is well known that for the said purpose, the writ petitioner must establish a legal right in himself and a corresponding legal duty in the State." 5. IN view of above, I find no merit in the writ petition. Dismissed.
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