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1999 DIGILAW 930 (ALL)

SARITA SINGH v. STATE OF UTTAR PRADESH

1999-07-08

D.K.SETH

body1999
( 1 ) THE petitioner was initially appointed in the post of clerk on daily wage basis for a period of three months on 17th April, 1991 as is evident from annexure-1 to the writ petition. The services were thereafter extended by an order dated 18th July, 1991 contained in anneuxre-2 to the writ petition for another period of three months. Thereafter, it was further extended for a period of three months by an order dated 3rd December, 1991 the services were extended for another period of three months as is evident from anneuxre-4. Again by an order dated 29th May, 1992, the services of the petitioner were extended for a period of three months as is apparent from annexure-5. Thereafter, by an order dated 18th June, 1992, there was a general order for dispensing with services of all such daily wage employees since there was no provision for appointment of such daily wage employee under the ?rules and that employment has been brought within the purview of the U. P. Sub-ordinate service Selection commission. Pursuant to the said order, by an order dated 19th June, 1992, the petitioners services was dispensed with. These are annexure-6 and 7 respectively. ( 2 ) BY means of this Rules, Mr. Rajeev Mishra, learned counsel for the petitioner had assailed the said order contained in annexure-6 and 7 respectively. Relying on the decision in the case of Rama shanker Yadav Vs. State of U. P. and others writ petition No. 24413 of 1992 disposed of on 11th February, 1998, Mr. Mishra points out that the impugned order contained in annexure-6 has since been quashed by this Court on 11th February, 1998. Therefore, the basis of issuing the order contained in annexure-7 having been non est, the order of termination cannot be sustained. He further contends that since the petitioner had continued for quite sometime, his services cannot be terminated in this manner without giving any opportunity to the petitioner and without following necessary procedure for dispensing with service since there is no allegation as against the petitioner. He further points out from the amendment application filed on 22nd april, 1998 that pursuant to the interim order granted in this writ petition, the petitioner was reinstated in service on 15th January, 1993. But subsequently, the petitioner was not paid salary since april, 1996 till 12th February, 1998. He further points out from the amendment application filed on 22nd april, 1998 that pursuant to the interim order granted in this writ petition, the petitioner was reinstated in service on 15th January, 1993. But subsequently, the petitioner was not paid salary since april, 1996 till 12th February, 1998. On the other hand, on 12th february, 1998 by an order dated 9th February, 1998 contained in annexure-2 to the Amendment Application, the petitioners services were against terminated. Therefore, the petitioner has filed the present application for amendment in order to bring on record the subsequent events that had taken place during the pendency of the writ petition. ( 3 ) AFTER hearing Mr. Rajeev Mishra, learned counsel for the petitioner and Mr. R. K. Saxena, learned Standing Counsel, the application for amendment is allowed. The application for amendment is to be treated as part of the writ petition. ( 4 ) AFTER the amendment is allowed by consent of the parties, the writ petition is taken up for hearing. Mr. Rajeev Mishra had addressed the Court on the merits of the case on the basis of the amended pleadings in the writ petition. Mr. Saxena had also made his submission. I have heard both the counsel at length. ( 5 ) THE appointment letter contained in annexure-1 specifies that the appointment was on daily wage basis and purely temporary for a period of three months from the date of joining. The order dated 18th july, 1991 contained in annexure-2 also mentions that the service is being extended for a period of three months from 18th July, 1991. The order dated 3rd December, 1991 contained in annexure-3 again extended the services of the petitioner. Similarly, services were extended for three months from 20th January, 1992 by virtue of the order dated 16th January, 1992 contained in annexure-4. While annexure-5 dated 29th May, 1992 extended the services for another three months. But there was no subsequent extension. By reason of the order dated 18th June, 1992, the services of the petitioner was dispensed with by an order dated 19th June, 1992 contained in annexure-7. Relying on the decision in the case of Rama Shanker yadav (Supra), Mr. Rajeev Mishra, contends that the order dated 18th june, 1992 having been quashed, the basis of termination of services of the petitioner by the order dated 19th June, 1992 had become non-existent. Relying on the decision in the case of Rama Shanker yadav (Supra), Mr. Rajeev Mishra, contends that the order dated 18th june, 1992 having been quashed, the basis of termination of services of the petitioner by the order dated 19th June, 1992 had become non-existent. Therefore, the order dated 19th June, 1992 contained in annexure-7 dispensing with petitioners service on the basis of the order dated 18th June, 1992 contained in annexure-6 looses its force. Thus as soon the order dated 19th June, 1992 becomes inoperative, the order extending the petitioners service by order dated 29th May, 1992 contained in annexure-5 revives. ( 6 ) IN the decision in the case of Rama Shanker Yadav (Supra), the order dated 18th June, 1992 was not quashed as a whole. It was quashed so far as the petitioner in that case was concerned. The consideration of the order dated 18th June, 1992 was confirmed to the case of the petitioner in that case alone, as is apparent from the reading of the said decision. There is nothing in the said decision to indicate that the order was challenged as a whole. Whatever might be the position the Court had confirmed itself to the case of the petitioner only while deciding the said case. In as much as in the said case the Court had observed that the Court had carefully considered the case of the petitioner and found that the order of termination was illegal and arbitrary since the petitioner was initially appointed by the Director and that there was no illegality and irregularity in the said appointment. This observation clearly indicates that the case was confirmed to the petitioner Rama Shanker Yadav alone. The said decision has not recorded any reason or basis of its satisfaction. It may be on the basis of the materials placed before the Court in the said case on the facts and circumstances of the said case. It has not laid down any ratio decidendi which could be followed as precedent in the present case. The contention of Mr. Rajeev Mishra therefore, cannot be acceded to on account of the distinguishing feature as discussed above in relation to the case of Rama Shanker Yadav (Supra) and hat of this case. It has not laid down any ratio decidendi which could be followed as precedent in the present case. The contention of Mr. Rajeev Mishra therefore, cannot be acceded to on account of the distinguishing feature as discussed above in relation to the case of Rama Shanker Yadav (Supra) and hat of this case. ( 7 ) THEN again by virtue of the said order dated 29th May, 1992 the petitioner was entitled to continue for a period of three months from 29th May, 1992. Thus the services being limited by time and there having been no further extension, the petitioner cannot claim any right to continue after the expiry of the said period of three months from 29th May, 1992 and the services of the petitioner would automatically come to an end. In such a situation, the petitioner cannot claim any legal right in continuing in service and there cannot be existence of any legal right which can be asserted through writ jurisdiction to continue in service by virtue of the said appointment on daily wage basis on the post of a clerk. ( 8 ) IN the relevant rules being the U. P. Ayurvedic and Unani clerical Services Rules, 1991, there is no provision for appointment of clerk on daily wage basis. Then again by virtue of 1991 Rules, the appointment in the post of clerk had become subject to selection by the U. P. Sub-ordinate Service Selection Board. There cannot be any appointment de hors the rules that too by an authority other than the service Commission. Therefore, the petitioner cannot claim any right to continue on the post. ( 9 ) BUT the fact remains that an interim order was issued on 21st july, 1992 in the present writ petition by virtue whereof the petitioner was reinstated on 15th January, 1993. Such reinstatement was subject to the result of the writ petition. The interim order does not confer any right. The interim order is an order interim during the pendency of the writ petition. If depends on the result of the writ petition. Since the petitioner had no right which could be asserted on the date when the writ petition was moved for a period beyond three months from the date 29th May, 1992. She cannot claim to continue beyond the same. If depends on the result of the writ petition. Since the petitioner had no right which could be asserted on the date when the writ petition was moved for a period beyond three months from the date 29th May, 1992. She cannot claim to continue beyond the same. If she had continued or reinstated by virtue of the interim order, the same does not confer any right on her since I have already held that she did not have any right to continue in the post. ( 10 ) BE that as it may, second order of termination contained in annexure-2 to the amendment application shows the reason on which the services of the petitioner were terminated. It had pointed out that the petitioner was not posted against any sanctioned post and the appointment was not a regular appointment. Thus even if it is assumed that the petitioner had been continuing by virtue of the interim order then she had a right to continue but that right is subject to a determination by the authority to retain her services and the second order appears to have been passed on the basis of a decision in writ petition No. 1366 (SS) of 1997 and the connected writ petition decided on 7th/8th August, 1997 whereby permission was given to dispense with all illegal appointments. Having found that the petitioner was not appointed on a post in a regular manner and that there having been on post to accommodate the petitioner, she was removed from the services. ( 11 ) INDEPENDENT of the interim order, let us examine the validity of the order dated 9th February, 1998 contained in annexure-2 to the amendment application. As observed earlier, since there is no provision for appointment on daily wage basis after the 1991 Rules were framed and the question of appointment in the post of clerk having been subjected to the Service Commission and the petitioner having not been appointed against a regular post through a regular selection, the petitioner could not claim any legal right to assert through writ jurisdiction. The Court cannot support the entry in service through back door. The judicial process cannot be utilised to support a mode of recruitment de hors the rules as has been held in the case of State of Himanchal Pradesh Vs. Suresh Kumar Verma [1991 (1)SLR 321]. The Court cannot support the entry in service through back door. The judicial process cannot be utilised to support a mode of recruitment de hors the rules as has been held in the case of State of Himanchal Pradesh Vs. Suresh Kumar Verma [1991 (1)SLR 321]. Then again in the case of Himangsu Kumar vidyarthi Vs. , State of Bihar and others [ 1997 (76)FLR 237 ], the Apex court had held that daily wage employee has no right to the post. Concept of retrenchment cannot be extended to them. Their disengagement is not arbitrary. In the present case, the petitioner was also not engaged against a post. Therefore, the principle enunciated in the said decision applies in full force in the present case. In the case of Sate of U. P. Vs. Kaushal Kumar Shukla [ 1991 (1) SCC 691 ] as well as in the case of Director, Institute of Management 7 development Vs. Smt,. Puspa Srivastava [ air 1992 SC 2070 ], the apex Court had held that a person appointed for a limited time cannot claim any right to continue after the expiry of the time limit. In the case of State of Haryana Vs. Pyara Singh [ air 1992 SC 2130 ] the Apex Court had depricated the entry into service through back door. ( 12 ) MR. Mishra had also relied on two circulars contained in annexure-3 and 4 to the amendment application whereby there has been a proposal of regularisation of the employees. Relying on those circulars Mr. Mishra contends that by reason of continuation in service pursuant to the interim order, the petitioner has also acquired a right to be considered for regularisation on the basis of her seniority as provided in annexure-3 and 4 respectively. In fact, the said two annexures shows that those were issued to regularise the persons who were working pursuant to the interim order granted by this court though there was no post. Therefore, such persons working against no post pursuant to the interim order being considered on the basis of seniority for being absorbed or adjusted against any vacancy in the Class-IV post. But the said circular has one provision which clearly cases out the petitioner. Because the said circular was meant for Class-IV employees. Therefore, such persons working against no post pursuant to the interim order being considered on the basis of seniority for being absorbed or adjusted against any vacancy in the Class-IV post. But the said circular has one provision which clearly cases out the petitioner. Because the said circular was meant for Class-IV employees. Since it is specifically mentioned that those class-IV employees who are working though there is no post available by reason of the order of the High Court, they are to be adjusted against the new vacancies or that might be resulted or created in future. Both these circulars deal with Class-IV employees. However, no such order could be issued in respect of a person employed in Class-Ill post since such employment is subject to 1991 rules and its selection conducted by the Service Commission. Therefore, no relief can be claimed by the petitioner by reason of the said two circulars contained in annexure-3 and 4 to the amendment application. ( 13 ) MR. Mishra had also relied on the U. P. Regularisation of Daily wages Appointment on Group-C Posts (Outside the purview of U. P. Public Service Commission) Rules 1998 since been promulgated on 9th July, 1998 and contends that by reason of Rule 4 (1) (I), the petitioner could have been become eligible for regularisation unless the order dated 9th February, 1998 was passed. In fact, by virtue of the said 1998 Rules, had the petitioners service not been terminated by order dated 9th February, 1998 she could have been within the zone of consideration for regularisation. But admittedly, the petitioner was not in service on 9th July, 1998. Unless the order dated 9th February, 1998 is held to be invalid and the petitioner is deemed to be continued, it cannot be said that she could come within the zone of consideration within 1998 Rules. Since I have already held that there is no infirmity in the order dated 9th February, 1998 therefore, the petitioner cannot claim to continue in service on 9th july, 1998 in order to claim the benefit of the 1998 Rules. In the result the writ petition fails and is, accordingly, dismissed. However, there will be no order as to costs. .