JUDGMENT Hon’ble Sudhir Agarwal, J.—Order dated 30.9.2013 having been recalled vide order of date passed on Recall Application, writ petition is restored to its original number. 2. As requested and agreed by learned counsel for parties, I proceed to hear and decide this case at this stage. 3. Heard Sri Sunil Tripathi, Advocate, for petitioner, learned Standing Counsel for respondents and perused the record. 4. Factual matrix giving rise to present writ petition are that after placing a Notice on Notice Board of Tehsil Farenda, District Maharajganj on 24.12.1991 inviting applications for two vacancies of Class-IV (Chaprasi) and fixing date of 3.1.1992 for interview, Deputy Collector, Banda presided a Selection Committee and pursuant thereto petitioner and one another were appointed vide appointment letter dated 4.1.1992 as Chaprasi on Class-4th Post on temporary basis. The order clearly says that appointment is purely temporary and is liable to be terminated at any point of time without any prior information. 5. By means of impugned order dated 22.6.1996 in exercise of power under U.P. Temporary Government Servants (Termination of Service) Rules, 1975 (hereinafter referred to as “Rules, 1975”) petitioner has been terminated on the ground that his services are no longer required. 6. Learned counsel for petitioner submitted that when he filed writ petition, it was entertained by this Court and an interim order was passed on 30.10.1996 to the following effect: “For a period of 2 months, the petitioner shall be permitted to continue in service.” 7. The said interim order, thereafter was extended on 19.12.1996 till the next date of listing and then on 10.1.1997 it was allowed to continue until further orders. Counsel for petitioner submitted that pursuant to aforesaid interim order petitioner continued to work as Class-IV employee and attained age of superannuation in the year 2011. He however submitted that though he completed age of superannuation on 31.7.2011 but respondents actually discontinued him on 31.7.2013. 8. Learned counsel for petitioner contended that even though petitioner’s appointment was purely temporary and may not have been made without following statutory Rules, yet the fact remains that he has continued to work throughout and ultimately has retired on attaining the age of superannuation, therefore, in the interest of justice order of termination be declared illegal and set aside so that petitioner may be entitled for all consequential benefits including retiral benefits. 9. 9. Learned Standing Counsel, on the contrary, submitted that the order of termination has to be examined on its own, as on the date of filing of writ petition, as to whether it was valid or not and if it was valid the writ petition deserves to be dismissed and all benefits which petitioner has enjoyed pursuant to interim order of this Court cannot be taken to be an additional cause of action giving unilateral benefit to petitioner causing permanent loss to respondents despite the fact that the authorities have passed a valid order of termination. 10. In my view, three questions need be answered: (1) Whether petitioner’s appointment was made following the Rules? (2) Whether he was rightly terminated under Rules, 1975? (3) Whether petitioner is entitled for any benefit in the light of fact that he has continued to serve pursuant to interim order passed by this Court and has retired ultimately? 11. It is not in disputed that appointment to a Class-IV post made in 1992 would be governed by Group ‘D’ Employees Service (U.P.) Rules 1985 (hereinafter referred to as Rules, 1985"), Rules 19 whereof provides procedure for appointment on a Class-IV post and reads as under: “19. Procedure for Selection.—(1) The appointing authority shall determine the number of vacancies to be filled during the course of the year as also the number of the vacancies to be reserved for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories. The vacancies shall be notified to the Employment Exchange. The appointing authority may also invite application directly from the persons who have their names registered in the Employment Exchange. For this purpose, the appointing authority shall issue an advertisement in a local daily newspaper besides pasting the notice for the same on the notice board. All such applications shall be placed before the Selection Committee. (2) When the names of the General candidates and Reserve Candidates (for whom vacancies are required to be reserved under the orders of the Government) have been received by the Selection Committee it shall interview and select the candidate for the various posts. All such applications shall be placed before the Selection Committee. (2) When the names of the General candidates and Reserve Candidates (for whom vacancies are required to be reserved under the orders of the Government) have been received by the Selection Committee it shall interview and select the candidate for the various posts. (3) In making selection the Selection Committee shall give weightage to the retrenched employees awarding marks in the following manner: (i) For the first complete year :5 marks (ii) For the next and every completed year of service : 5 marks Provided that the maximum marks awarded to a retrenched employee under this sub-rule shall not exceed. (4) The number of the candidates to be selected will be larger (but not larger by more than 25 per cent) than the number of vacancies for which the selection has been made. The names in the select list shall be arranged according to the marks awarded at the interview.” 12. It is nowhere stated in the entire writ petition that the vacancy against which petitioner claims to have been appointed was filled in after following procedure prescribed in Rules 19 of Rules, 1985, i.e. after vacancies being notified to the Employment Exchange or inviting applications directly from the persons who have their names registered in the Employment Exchange by issuing an advertisement in a local daily newspaper besides pasting the notice for the same on the notice board. On the contrary, learned counsel for petitioner despite being repeatedly asked could not placed anything before this Court to show that the vacancies were advertised in accordance with Rules. Therefore, the petitioner cannot be said to have been validly appointed on the post in question. 13. In Amin Ullah and another v. Director, Ayurvedic and Unani Services, Lucknow and others, 2005(2) ESC 1466 , this Court observed that the appointment made without following the procedure prescribed in law is vitiated and in such a case, the affected person is not entitled for any notice or opportunity. The relevant extract of the judgment is reproduced as under: “It is well-settled that if proper procedure as provided under the law or rules has been followed, then total selection is vitiated. The relevant extract of the judgment is reproduced as under: “It is well-settled that if proper procedure as provided under the law or rules has been followed, then total selection is vitiated. In such a case, the affected person is not entitled for any notice or opportunity as held by this Court that if such types of appointments have been made that will be treated to be void ab initio.” 14. It is, thus, evident that appointment of petitioner was illegal having not been made in accordance with statutory provisions and would not confer any right upon petitioner to hold the post or to claim continuance thereon. 15. Having said so, now I come to second question about validity of petitioner’s termination. Admittedly petitioner was employed on temporary basis and this fact was clearly mentioned in his letter of appointment. In terms of his letter of appointment read with Rules, 1975 an order of termination simplicitor has been passed. The counsel for the petitioner did not suggest during the course of argument that impugned order of termination is punitive, therefore, apparently there is no reason to examine the impugned order from that angle but even if I look into this aspect of the matter, I find that the issue is squarely covered by a Division Bench decision in Paras Nath Pandey v. Director, North Central Zone, Cultural Centre, Nyay Marg, Allahabad, 2008(10) ADJ 283 (DB) wherein para 57 of the judgement, the Court has laid down certain guidelines so as to determine as to when a termination simplicitor can be said to be punitive, and it reads as under: “57. From the above discussions, the principles discernible to find out whether a simple order of termination/discharge of a temporary employee or probationer is punitive or not, broadly, may be stated as under : (a) The termination of services of a temporary servant or probationer under the rules of his employment or in exercise of contractual right is neither per se dismissal nor removal and does not attract the provisions of Article 311 of the Constitution. (b) An order of termination simplicitor prima facie is not a punishment and carries no evil consequences. (b) An order of termination simplicitor prima facie is not a punishment and carries no evil consequences. (c) Where termination simplicitor is challenged on the ground of casting stigma or penal in nature, the Court initially would glance the order itself to find out whether it cast any stigma and can be said to be penal or not. If it does not, no further enquiry shall be held unless there is some material to show certain circumstances, preceding or attending, shadowing the simplicitorness of the said order. (d) The Court is not precluded from going beyond the order to find out as to whether circumstances, preceding or attending, makes it punitive or not. If the circumstances, preceding or attending, show only the motive of the employer to terminate, it being immaterial would not vitiate the order unless it is found that order is founded on such act or omission constituting misconduct. (e) If the order visits the public servant with evil consequences or casts aspersions against his character or integrity, it would be an order by way of punishment irrespective of whether the employee was a mere probationer or temporary. (f) “Motive” and “foundation” are distinct, though the distinction is either very thin or overlapping. “Motive” is the moving power, which impels action for a definite result, or to put it differently. “Motive” is that which incites or stimulates a person to do an act. “Foundation”, however, is the basis, i.e., the conduct of the employee, When his acts and omissions treated to be misconduct, proved or founded, it becomes a case of foundation. (g) If an order has a punitive flavour in cause or consequence, it is dismissal, but if it falls short of it, it would not. (h) Where the employer is satisfied of the misconduct and the consequent desirability of termination, it is dismissal even though the order is worded innocuously. However, where there is mere suspicion of misconduct and the employer does not wish to bother about it, and, instead of going into the correctness of guilt, feel like not to keep the employee and thus terminate him, it is simpliciter termination and not punitive. (i) Where the termination simplicitor is preceded by an enquiry, preliminary or regular, the Court would see the purpose, object of such enquiry as also the stage at which, the order of termination has been passed. (i) Where the termination simplicitor is preceded by an enquiry, preliminary or regular, the Court would see the purpose, object of such enquiry as also the stage at which, the order of termination has been passed. (j) Every enquiry preceding the order of termination/discharge, would not make it punitive. Where an enquiry contemplated in the rules before terminating an probationer or temporary employee is held, it would not make the order punitive. (k) If the enquiry is to find out whether the employee is fit to be confirmed or retained in service or to continue, such an enquiry would not render termination punitive. (l) Where the employer hold a formal enquiry to find out the correctness of the alleged misconduct of the employee and proceed on the finding thereof, such an order would be punitive, and, cannot be passed without giving an opportunity to the concerned employee. (m) If some formal departmental enquiry commenced but not pursued to the end. Instead a simple order of termination is passed, the motive operating in the mind of the authority would be immaterial and such an order would be non punitive (n)When an order of termination is assailed on the ground of mala fide or arbitrariness, while defending the plea of mala fide, if the authority has referred certain facts justifying the order of discharge relating to misconduct, negligence or inefficiency of the employee in the appeal or in the affidavit filed before the Court, that would not make the order founded on any misconduct. (o)Sometimes when some reason is mentioned in the order, that by itself would not make the order punitive or stigmatic. The following words mentioned in the order have not been held to be punitive. i.”want of application”, ii.”lack of potential”, iii.”found not dependable”, iv.”under suspension”, v.”work is unsatisfactory”, vi.”unlikely to prove an efficient officer”. (p) Description of background facts also have not been held to be stigmatic. (q) However, the words “undesirable to be retained in Government service”, have been held stigmatic. (r) If there is (i) a full scale formal enquiry, (ii) in the allegations involving moral turpitude or misconduct, (iii) which culminated in a finding of guilt; where all these three factors are present, the order of termination would be punitive irrespective of the form. However, if any one of three factors is missing, then it would not be punitive.” 16. However, if any one of three factors is missing, then it would not be punitive.” 16. Considering the impugned orders in the light of para 57 in the case of Paras Nath Pandey (supra), I do not find by any stretch of imagination that the impugned order is punitive and thus warrants no interference on this score. 17. The order of termination simplicitor has been passed strictly in terms of letter of appointment and statutory provisions and in absence of any other illegality pointed out, I find no reason to hold the same bad and therefore, the same cannot be interfered. This Court has no option but to hold that the order of termination is just and in accordance with law. 18. Now I come to the last question as to whether the interim order passed by this Court can confer an additional benefit upon petitioner which otherwise he would not have entitled since the writ petition as it is, is liable to be dismissed. 19. The 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. 20. 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 Farhat Jahan v. State of U.P. and others, 2009(10) ADJ 81 , 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. 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. 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.” 21. 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 Allahabad 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. 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.” 22. The same principle has been reiterated in the following cases: (A) Sri Ram Charan Das v. Pyare Lal, AIR 1975 Allahabad 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 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 Allahabad 139 and Sri Ram Charan Das v. Pyare Lal, AIR 1975 Allahabad 280 (DB).” (C) Kanoria Chemicals & Industries Ltd. v. U.P. State Electricity Board, AIR 1994 Allahabad 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.” 23. 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...” 24. It is well-settled that long continuance, if the appointment has not been made strictly in accordance with law, would not confer any right upon incumbent to hold the post. It is well-settled that long continuance, if the appointment has not been made strictly in accordance with law, would not confer any right upon incumbent to hold the post. The Apex Court in Shesh Mani Shukla (supra) JT 2009 (10) SC 309 held: “It is true that the appellant has worked for a long time. His appointment, however, being in contravention of the statutory provision was illegal, and, thus, void ab initio. If his appointment has not been granted approval by the statutory authority, no exception can be taken only because the appellant had worked for a long time. The same by itself, in our opinion, cannot form the basis for obtaining a writ of or in the nature of mandamus; as it is well known that for the said purpose, the writ petitioner must establish a legal right in himself and a corresponding legal duty in the State.” 25. Thus, all three questions formulated above have to be answered against petitioner. In view of the discussions made hereinabove, I do not find any merit in the writ petition. 26. Dismissed. 27. The interim orders shall stand vacated.