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2009 DIGILAW 2671 (ALL)

SURESH PRASAD v. DISTRICT MAGISTRATE, BALLIA

2009-07-27

SUDHIR AGARWAL

body2009
JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Dr. R.G. Padia, learned Senior Advocate assisted by Sri Prakash Padia for the petitioner and learned Standing Counsel for the respondents. 2. The petitioner has sought the following reliefs : “A. a writ, order or direction, including a writ in the nature of Mandamus commanding the respondents to permit the petitioner to continue as Class IV employee till such time regular selection is made by the respondents in case a permanent vacancy exists in respect of a Class IV post with respondent No. 3 or in case any person junior to the petitioner is being permitted to work as Class IV employee; B. a writ, order or direction including a writ in the nature of mandamus commanding the respondents to pay salary to the petitioner month-by-month as and when it falls due along with arrears of salary w.e.f. 18.6.1992; C. a writ, order or direction including a writ in the nature of mandamus commanding the respondents to pass appropriate orders in respect of the judgment passed by this Hon’ble Court in a writ petition filed by the petitioner dated 31.8.1992; D. any other writ, order or direction, which this Hon’ble Court may deem fit and proper in the circumstances of the case; E. award costs of the writ petition throughout to the petitioner.” 3. It appears that the petitioner was engaged for a limited tenure from time to time and his last engagement was for the period of 7.5.1992 to 17.6.1992 and thereafter he was not required. 4. The petitioner is alleging that the Sub-Treasury Officer, Bareya, District Ballia has made a recommendation for continuance of petitioner on 21.7.1992 but no order thereon was passed by Senior Treasury Officer. Thereafter the petitioner filed Writ Petition No. Nil of 1992 and this Court disposed of the writ petition on 31.8.1992, passing the following order : “The petitioner was appointed as a peon on 14.8.1991 for a period of 42 days only. His services were extended from time to time. Thereafter a recommendation has been made by the respondent No. 3 on 21.7.1992 to respondent No. 2 for the extension of his services. It appears that no order has been passed. The petitioner’s case is that he has been working continuously but his salary has not been paid after 17th June, 92. His services were extended from time to time. Thereafter a recommendation has been made by the respondent No. 3 on 21.7.1992 to respondent No. 2 for the extension of his services. It appears that no order has been passed. The petitioner’s case is that he has been working continuously but his salary has not been paid after 17th June, 92. The petitioner has prayed for issue of a writ in the nature of mandamus directing the respondents to regularise his services and pay the salary. This relief cannot be granted by this Court unless the respondent No. 2 passes a final order on the recommendation made by respondent No. 3. Accordingly we direct the respondent No. 2 to pass a suitable order on the recommendation made by the respondent No. 3 on 21.7.92 within a period of one month from the date of filing of a certified copy of this order before him. With this observation, the writ petition is being disposed of finally. A certified copy of this order may be issued to the learned counsel for the petitioner within a week on payment of usual charges.” 5. Pursuant thereto Senior Treasury Officer, Ballia passed the order dated 18.11.1992 observing that there is no requirement of the petitioner for further engagement and his appointment being a tenure appointment has already ceased by efflux of time. This order has not been challenged by the petitioner. On the contrary, only a writ of mandamus has been sought to continue him as Class IV employee and pay him salary. It is not disputed by learned counsel for the petitioner that regular appointment on Class-IV post is governed by statutory Rules i.e. Group ‘D’ Employees Service (U.P.) Rules, 1985 but the petitioner has not been appointed following the procedure laid down therein. 6. However, Sri Padia contended that the termination of petitioner is illegal inasmuch as several allegations have been made for the petitioner’s conduct in the counter affidavit and, therefore, in view of this Court’s decision in Tasneem Fatma (Smt.) v. State of U.P. and others, 2009(1) UPLBEC 321 and the Constitution Bench decision in Shamsher Singh v. State of Punjab, 1975(2) SCC 831, the petitioner’s termination being stigmatic is liable to be set aside. 7. The submission, in my view, is thoroughly misconceived. Here it is not a case of termination of petitioner as such. 7. The submission, in my view, is thoroughly misconceived. Here it is not a case of termination of petitioner as such. The petitioner was appointed on tenure basis and after expiry of the period the appointment comes to an end by efflux of time. The Apex Court in the case of Director, Institute of Management Development, U.P. v. Pushpa Srivastava, AIR 1992 SC 2070 , has held, where the appointment is made on tenure basis there is no requirement to pass an order of termination since it is automatic by efflux of time. Here the authority concerned was to consider whether there was any requirement of petitioner for the further engagement which would have necessitated a same fresh order of appointment. 8. It is next submitted that pursuant to an interim order passed by this Court the petitioner is continuing and, therefore, it will be extremely harsh if as a result of dismissal of writ petition his services would be dispensed with after 17 years. The petitioner has already passed the maximum age and he now cannot get any alternative employment, therefore, this Court must permit him to continue in service. 9. It is no doubt true that on 1.12.1992 an interim order was passed by this Court to the following effect : “For a period of four months from today the operation of the order dated 18.11.92 shall remain stayed. Petitioner will be entitled for salary for the period for which he actually worked.” 10. According to my understanding the said order nowhere direct the respondents to continue the petitioner in service for the reason that the order dated 18.11.1992 did not terminate him but only says that his term having completed, he cease to be in employment and the department does not require his services. Even if this order was stayed, it would not automatically result in treating as if a fresh order of appointment was issued. This order also does not say anywhere that the petitioner shall be allowed to continue to function. With respect to payment of salary, it only says that the petitioner will be entitled for salary for the period for which he actually work. The petitioner, therefore, was not granted any interim order by this Court to continue in service. This order also does not say anywhere that the petitioner shall be allowed to continue to function. With respect to payment of salary, it only says that the petitioner will be entitled for salary for the period for which he actually work. The petitioner, therefore, was not granted any interim order by this Court to continue in service. Sri Padia, however, submitted that construing this Court’s decision by the respondents as if he was entitled to continue, the respondents actually allowed him to continue and till today he is continuing. 11. Be that as it may, it is well established that act of the Court shall prejudice none. The services 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 v. 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 v. State of U.P., AIR 1968 All 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.” The same principle has been reiterated in the following cases : (A) AIR 1975 All 280 , Sri Ram Charan Das v. Pyare Lal. “In Shyam Lal v. 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. “In Shyam Lal v. 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 All 139 and Sri Ram Charan Das v. Pyare Lal, AIR 1975 All 280 (DB)].” (C) AIR 1994 All 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. Recently also in Raghvendra Rao etc. v. 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. .............” 13. It is not the case of the petitioner that even in this interregnum period his selection has been made on regular basis. That being so, the law laid down by the Constitution Bench of the Apex Court in Secretary, State of Karnataka v. Uma Devi, 2006(4) SCC 1 , that any such indulgence cannot be granted by the Court to continue the petitioner in service would squarely apply in this case also. 14. Learned counsel for the petitioner at this stage requested that in case the respondents proceed to hold regular selection, the petitioner if apply, may also be considered by granting relaxation in age to the extent he has served the department. 14. Learned counsel for the petitioner at this stage requested that in case the respondents proceed to hold regular selection, the petitioner if apply, may also be considered by granting relaxation in age to the extent he has served the department. However, from perusal of Rule 32 of 1985 Rules that no power has been conferred upon the State Government to relax the rules pertaining to recruitments. In State of Uttranchal v. Alok Sharma and others, JT 2009(6) SC 463, considering the matter of relaxation of Rules the Apex Court said : “An authority, unless a power is conferred on it expressly, cannot exercise a statutory power. Power of relaxation must be specifically conferred. Such power having been envisaged to be conferred by reason of a rule made under the proviso appended to Article 309 of the Constitution of India, the contention of the learned counsel for the respondents that relaxation must be deemed to have been granted cannot be accepted.” The discretionary jurisdiction could be exercised for relaxation of age provided for in the rules and within the four corners thereof..” 15. Something which is not conferred by rules cannot be given by means of a judicial order since it would amount to direct the respondents to act in the teeth of the statutory rules which is impermissible, therefore, this request is also rejected. 16. The writ petition, therefore, lacks merit and is accordingly dismissed. Interim order, if any, stands vacated. ————