JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard learned counsels for parties and perused the record. 2. The writ petition is directed against the order dated 28.9.1993 passed by Additional Director of Education (Secondary) cancelling appointment of petitioner as Kursi Bunkar against a Class IV post in the pay-scale of Rs. 750-940 by order dated 30.5.1993. 3. Counsel for petitioner submitted that he was appointed in the quota meant for physically handicapped persons. Petitioner has relied on provisions of Section 32 and 33 of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as “Act, 1995”) read with U.P. Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993 (hereinafter referred to as “Act, 1993”). 4. However despite repeated query, learned counsel for petitioner could not place any averment in the writ petition to show that vacancy in which he was appointed was ever advertised or the procedure prescribed for appointment on a Class IV post was followed. 5. The procedure of recruitment and appointment on a Class IV post is provided under Group ‘D’ Employees Service Rules, 1985 (hereinafter referred to as “Rules, 1985”). From the record, it appears that abruptly a list of physically handicapped persons was prepared and thereafter appointment letters were issued and noticing these facts, appointments have been cancelled by means of impugned order dated 28.9.1993. 6. Once the appointment was made without following the procedure prescribed in Rules, it cannot be said that such an appointment is valid in law and cannot be canceled. This Court has already differentiated and expressed the view when the very selection/appointment of incumbent is found to be nullity, cancellation thereof does not amount to dismissal or removal of service. In Civil Misc. Writ Petition No. 51300 of 2007 (Devendra Kumar v. State of U.P. and others) decided on 2.11.2010; the Court said: “Here this is not a case of dismissal. It is a case of cancellation of selection and appointment on account of false information furnished by petitioner before his appointment by filing an affidavit which contained wrong information and therefore, cancellation of selection and appointment. .. has been made” 7. Then it is contended that pursuant to ex parte interim order passed by this Court, petitioner is continuing in service for the last more than a decade, and, therefore, he is entitled to continue in service. 8. .. has been made” 7. Then it is contended that pursuant to ex parte interim order passed by this Court, petitioner is continuing in service for the last more than a decade, and, therefore, he is entitled to continue in service. 8. Mere fact that an interim order was passed and incumbent was continuing on the post, that would not confer any benefit or cause of action to petitioner if ultimately he does not succeed in the writ petition. 9. A Division Bench of this Court presided by Hon’ble C.K. Prasad, C.J. (as His Lordship then was), while rejecting the claim of appellant to continue in service on the basis of long continuance pursuant to an interim order passed by this Court, in Special Appeal No. 1818 of 2009 (Farhat Jahan v. State of U.P. and others) decided on 26.11.2009 observed as under: “She had continued in service by virtue of an interim order passed by this Court. This continuance of the petitioner during the pendency of the writ petition is a litigious continuance in service, which will not enure to her benefit. The Division Bench of this Court had the occasion to consider this question in Special Appeal No. 926 of 2002 (Sunil Kumar v. The Regional Assistant Director of Education (Basic), 12 Circle, Moradabad), which reads as follows “Having appreciated the rival submission, we do not find any substance in the submission of Mr. Saxena and the decision relied on shall have no bearing in the facts of the present case. As stated earlier, the petitioner was appointed by order dated 22.4.1987 on temporary basis and the order of appointment clearly indicated that his service can be terminated without any notice or prior information. His service was terminated in exercise of power under Rule 3 of the Rules 1975 by order dated 5.9.1988. Petitioner has, nowhere, averred as to the process of appointment, which was followed while giving him temporary appointment. True it is that by virtue of interim orders passed by this Court, he continued in service but such continuance is nothing but a “litigious employment”. Once it is held so, mere continuance in service for a long period would not clothe him with any right. True it is that by virtue of interim orders passed by this Court, he continued in service but such continuance is nothing but a “litigious employment”. Once it is held so, mere continuance in service for a long period would not clothe him with any right. The view, which we have taken, finds support from the judgement of the Supreme Court in the case of Umadevi (supra) as also Surindra Prasad Tiwari (supra).” In view of aforesaid, we are of the opinion that the litigious continuance in service shall not enure to her benefit.” 10. It is well established that act of the Court shall prejudice none. The service rendered pursuant to an interim order would not give any benefit to petitioner. This issue has also 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.” 11. The same principle has been reiterated in the following cases: (A) Sri Ram Charan Das v. Pyare Lal, AIR 1975 All 280 . “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 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) Shyam Manohar Shukla v. State of U.P., 1986 (4) LCD 196 “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) Kanoria Chemicals & Industries Ltd. v. U.P. State Electricity Board, AIR 1994 All 273 . “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. 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. Learned counsel for petitioner further stated that once an interim order has been passed, it does mean that the interim order be treated as final order and the Court cannot take a different view at the time of final hearing. 14. This submission cannot be accepted and I find that this averment is apparently contemptuous inasmuch the ex parte order passed at the time of admission would not govern the position at the time of final hearing. 14. This submission cannot be accepted and I find that this averment is apparently contemptuous inasmuch the ex parte order passed at the time of admission would not govern the position at the time of final hearing. This Court is further of the view that interim orders passed ex parte should not be allowed to put the other side in a serious loss as it amounts to compel the other side to sustain loss for the fault of the Court. It is well established that the act of Court shall prejudice none. Therefore, in order to do complete justice, the writ petition is dismissed with the further direction that whatever benefit petitioner has earned pursuant to ex parte interim order passed by this Court, shall be recovered from him as if no interim order was ever passed by this Court. 15. This order shall be communicated to State for compliance. ———————