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2009 DIGILAW 3633 (ALL)

Prakash Misra v. State of U. P.

2009-12-01

SUDHIR AGARWAL

body2009
JUDGMENT Hon'ble Sudhir Agarwal, J. 1. This is an application praying for recall of my judgement dated 14.09.2009 filed by Sri D.S.M. Tripathi, counsel for the petitioner stating that on 14.09.2009 he was arguing a case in Court No. 39 and, therefore, could not appear when this case was taken up and decided ex parte. Later on when he became free and came to the Court he was informed that the matter was already decided and thereafter he informed his client for filing the present application, who came to Allahabad on 07.10.2009 and thereafter the application has been filed. 2. It is true that the writ petition was decided in the absence of learned counsel for the petitioner since he did not appear though the case was taken in the revised list but as a matter of practice this Court always permit a counsel even if he appear subsequently on the same date to argue the case and thereafter pass order but in this case no such request was made on 14.09.2009, since he never appeared before this Court. Probably for this reason today when this application was taken up one Sri Ashutosh Tripathi, Advocate has appeared and requested this Court to permit him to make his submissions. He has also filed his Vakalatnama after obtaining no objection certificate from Sri D.S.M. Tripathi, Advocate. 3. Though, normally, in recall/review application moved by another counsel, it is not appropriate to hear a different counsel but in the interest of justice I give full opportunity to Sri Ashutosh Tripathi to address the Court and to show any error in my judgement dated 14.09.2009. 4. Sri Tripathi candidly admits that apparently there does not appear to be any such error in the judgment but since, pursuant to interim order dated 25.07.1990, the petitioner is continuously working and getting salary, therefore, after more than 29 years it would not be equitable and in the interest of justice that he should be allowed to be terminated as a result of dismissal of this writ petition. He also requested this Court to entertain a supplementary affidavit sworn on 22.11.2009 requesting the Court to take into account certain facts which were not brought to notice to this Court though they were within the knowledge of petitioner at the time of filing of the writ petition but could not be incorporated in the writ petition by the earlier counsel. Normally, even this request is not permissible since no additional document is permissible at this stage but in order to give full opportunity to the petitioner and in the interest of justice I received the supplementary affidavit and permitted him to address the Court on the basis of the facts stated therein and to show as to what is the error in my judgement. He could not point out any error therein but submitted again that since he is continuing for last 29 years meaning thereby that there is requirement of Class-III employee and the post but the respondents are not creating the post and employing the persons on ad hoc basis which means that there action of non creation of vacancy is violative of Article 21 of the Constitution. Referring to para 14 of the supplementary affidavit he submits that there were 5-6 persons who were employed on ad hoc basis in 1987-88 and were regularised in 1999 and all these persons are junior to the petitioner but only the petitioner has been discriminated. He also placed reliance on Annexure-SA-1 and 2 to the supplementary affidavit which is a letter sent to the petitioner 06.04.1990 and, submitted that application dated 09.04.1990 was given by him requesting the authorities concerned to consider his claim for engagement but the same was not considered. 5. However, I find no merit in any of the above submissions which may justify either recall of my order dated 14.09.2009 or any relief to petitioner. It is well settled that benefit received by a litigant based on an interim order passed by this Court does not confer any right upon him since it is always subject to the result of the writ petition and if the writ petition fails the result would be as if no interim order was ever passed. This aspect has been considered by a Division Bench this Court in detail (in which I was a member) in Smt. Vijay Rani Vs. This aspect has been considered by a Division Bench this Court in detail (in which I was a member) in Smt. Vijay Rani Vs. Regional Inspectress of Girls Schools, Region-I, Meerut & others, 2007 (2) ESC 987 and this Court has held that no benefit can accrue to a litigant based on an interim order passed by this Court if ultimately the writ petition is dismissed. The relevant observation of the Court is reproduced as under: "If a person has enjoyed certain benefits under the interim order, he/she would not be allowed to claim any further benefit due to change in law pursuant to enjoyment of certain benefit under an interim order of the Court. A benefit under the interim order is tentative and subject to final decision in the matter and cannot go beyond the final decision." 6. In the absence of any legal right to hold the post or to continue, merely because a person has continued to serve the employer for long particularly under the interim order, would not attract even equitable relief if it is otherwise contrary to law and is violative of Article 16(1) of the Constitution. At no point of time the petitioner was ever engaged by the respondents after observing the procedure contemplated under the Rules read with Article 16(1) of the Constitution. In such a case where the alleged engagement was itself wholly illegal, the question of regularisation does not arise. On a query made from counsel for the petitioner as to under which provision the persons whose names are mentioned in para 14 of the supplementary affidavit have been regularised, he could not point out anything. It is well settled that if some illegal acts have been done by the employer in some cases that will not give any right to claim parity in a Court of Law since Article 14 has no application to claim parity in respect to illegal acts. The right of equality under Article 14 and 16 of the Constitution is a positive concept and not a negative one. (See Post Master General, Kolkata and others Vs. Tutu Das, 2007(5) SCC 317 ; Punjab National Bank by Chairman and Anr. Vs. Astamija Dash, AIR 2008 SC 3182 ; Punjab State Electricity Board and others Vs. Gurmail Singh, M/s. Laxmi Rattan Cotton Mills Ltd. Vs. State of U.P. and others, Panchi Devi Vs. (See Post Master General, Kolkata and others Vs. Tutu Das, 2007(5) SCC 317 ; Punjab National Bank by Chairman and Anr. Vs. Astamija Dash, AIR 2008 SC 3182 ; Punjab State Electricity Board and others Vs. Gurmail Singh, M/s. Laxmi Rattan Cotton Mills Ltd. Vs. State of U.P. and others, Panchi Devi Vs. State of Rajasthan and others, State of Bihar Vs. Upendra Narayan Singh, State of Uttaranchal Vs. Alok Sharma and others, State of Punjab and another Vs. Surjit Singh and others, State of Madhya Pradesh and others Vs. Ramesh Chandra Bajpai, Shanti Sports Club and another Vs. Union of India and others, Ghulam Rasool Lone Vs. State of J & K and others. It is well settled that two wrongs will not make one right. (See State of Bihar and others Vs. Kameshwar Prasad Singh and another, Union of India and another Vs. International Trading Co. and another, Lalit Mohan Pandey Vs. Pooran Singh and others, M/s Anand Buttons Ltd. etc. Vs. State of Haryana and others, Kastha Niwarak G. S. S. Maryadit, Indore Vs. President, Indore Development Authority. 7. In view of the above discussion, having given full opportunity to substituted counsel Sri Ashotosh Tripathi, I find no reason to recall my order dated 14.09.2009 as no error has been pointed out by learned counsel for the petitioner. The application is accordingly rejected.