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2003 DIGILAW 209 (JK)

Mohd. Rajab Beigh v. State

2003-07-11

MUZAFFAR JAN, R.C.GANDHI

body2003
Per : Honble Justice Gandhi (Oral) This LPA has been preferred against the judgment dated: 22.4.2002 whereby the writ petition No./ 542/95 has been dismissed by the learned Single Judge rejecting the case of the appellant for continuation of his appointment which was for a period of two months. Appellant was appointed as an orderly vide order No. 436/Estt:/DSW/1995 dated: 4.3.1995 by Director, Sainik Welfare Srinagar for a period of two months with effect from 3.4.1995 to 12.6.1995 with the stipulation that the appellant shall have no claim of seniority/permanency for the service rendered in purely temporary capacity. The appellant-writ petitioner within the currency of two months period presented a writ petition on 30.5.1995 seeking relief of his continuation and fixation of seniority. The learned Single Judge after hearing the learned counsel for the parties dismissed the writ petition observing that. the petitioners appointment being only for two months has no sustainable claim against the post. Aggrieved of the order of the learned Single Judge, this appeal has been preferred on the same grounds set out in the memo of writ petition. We have heard the learned counsel for the appellant and perused the record. The appellant on presentation of the writ petition was permitted to continue against the post by all interim direction. The writ petition came to be dismissed in default of appearance on 2.7.2001. Pursuant thereto the appellant was ousted. Restoration application was filed and the writ petition was restored on 15.2.2002. In the meantime one Mohmmad Latif son of Talib Hussain was appointed against the said post vide order dated: 29.6.2002 under SRO No. 43 of 1994. On the day of restoration of the writ petition, the post stood filled up. An interim direction dated: 29.8.2003 was issued directing the respondents to allow the appellant/petitioner to function till the objections are filed and considered. This order was not complied with by the respondents and contempt petition was presented seeking implementation of the order. Learned counsel for the appellant has submitted that there are five more vacancies available with the respondents and the plea taken by the respondents that the post has been utilized by appointment of Mohmmad Latif though correct but does not mean that the post is not available for accommodating the appellant. Prima facie, there appears no substance in the plea of the, learned counsel for the appellant for various reasons. Prima facie, there appears no substance in the plea of the, learned counsel for the appellant for various reasons. The post against which the appellant was appointed. It stood admittedly filled up. The appellant has no cause or right against the other available post for his continuation as the post is required to be filled up in accordance with law. It is admitted case of the parties that appellants appointment was not extended by the respondents. Before the expiry of period of appointment of two months, the appellant/writ petitioner has approached the Court on 30.5.1995 and sought interim direction for his continuation The adhoc appointment of the appellant, if not extended, by afflux of time. The adhoc appointment can only be continued in terms of Rule 14 of J&K (Classification, Control and Appeal) Rules, 1956, which provides the continuation of the appointment, maximum for a period of nine months. Admittedly the appellant was appointed with effect from 3.4.1995 and continued till the dismissal of the writ petition on 2.7.2001. The appellant would not have been continued in violation of Rule 14 (supra) by the respondents. He has been continued in terms of the interim direction of the Court. It is settled position of law that if the appointment is for a specific and fixed period it lapses by efflux of time as held by the Supreme Court in AIR 1992 SC 2070 observing that: " Where the appointment is purely on adhoc basis and is contractual and by efflux of time, the appointment comes to an end, the person holding such post can have no right to continue in the post. This is so even if the person is continued from time to time on adhoc basis for more than a year. He cannot claim regularization in service on basis that he was appointed on adhoc basis for more than a year." The plea of the learned counsel for the appellant that since the appellant has continued and the post is available, therefore, he be allowed to continue, appears to have no legal substance. Appellants appointment has not been extended by the respondents. He has been continued on the strength of court order. It is settled position of law that act of the Court should not prejudice the cause or right of either party. Appellants appointment has not been extended by the respondents. He has been continued on the strength of court order. It is settled position of law that act of the Court should not prejudice the cause or right of either party. The continuation on the strength of the interim direction of the court will not improve his case, as held by the Supreme Court in 1998(SCC) 529 holding that: "........... a person continued under the interim orders of the Court, such continuance on the post cannot and, in this case, does not confer any right for continuance, it does not enhance his case for regularization." For the foregoing reasons, we see no good ground warranting interference in the order under appeal. Consequently the appeal fails and is dismissed.