# Chemicals & Industries Ltd v. U.P. State - **Citation:** (2012) 1 ILRA 331 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2012-03-26 - **Case number:** Civil Misc. Writ Petition No. 34918 of 1993 - **Bench:** Satya Poot Mehrotra, Mrs. Sunita Agarwal - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chemicals-industries-ltd-v-u-p-state-42130 - **Pages:** 4 ## Headnote Sri S.N. Srivastava Sri Shishir Kumar Sri S.K. Rai Sri K.L. Grover Sri U.N. Sharma (S.S.C.) C.S.C. Constitution of India, Article 226/227 with Army Act-Section-34-member of 332 INDIAN LAW REPORTS ALLAHABAD SERIES [2012 Arm Forces-punishment-of 7 years rigorous imprisonment by Court Martialmatter relates to Service-not covered under Section 14 (3) (a)-petition stood transferred before Army Tribunal. Held: Para 10 The cause of action of the present Writ Petition as noted above, is evidently such as falls within the jurisdiction of the Tribunal after enforcement of the Act. This is evident from the provisions contained in Section 14 read with Section 3(o) of the said Act as well as Section 15 of the said Act. It may be mentioned that cause of action of the present Writ Petition would not fall within the exception given in subclause (iv) of clause (o) of Section 3 of the said Act, as in the present case Summary General Court Martial of the petitioner was held wherein seven years rigorous imprisonment was awarded. Case law Discussed: 2010 (3) ADJ 593; 2010 (4) ADJ 251 (DB); Order dated 28.10.2010 passed in Special Appeal Defective No. 218 of 2006 [Anil Kumar Singh Vs. Union of India & Another]; Order dated 6.12.2010 passed in Civil Misc. Writ Petition No. 21559 of 2002 [ Smt. Indrawati Singh Vs. Union of India and others];Order dated 6/12/2010 passed in Civil Misc. Writ Petition No. 21559 of 2002 [Smt. Indrawati Singh Vs. Union of India and others]; Order dated 20th January 2011 passed in Civil Misc Writ Petition No. 43411 of 1999 [Ic-40241h Major Anil Kumar Vs. Union of India and others]. ## Text 1 All IInd Lt.Shatrughan Singh Chauhan V. Union of India and another 331 "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) AIR 1994 Allahabad 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." 8. Recently also in Raghvendra Rao etc. Vs. 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. ............." 9. So far as the service rendered by petitioner for long time is concerned, 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) J.T. 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." 10. In view of above, I find no merit in the writ petition. Dismissed. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 26.03.2012 BEFORE THE HON'BLE SATYA POOT MEHROTRA,J. THE HON'BLE MRS. SUNITA AGARWAL,J. Civil Misc. Writ Petition No. 34918 of 1993 IInd Lt.Shatrughan Singh Chauhan ...Petitioner Versus Union of India & another ...Respondents Counsel for the Petitioner: Sri Sudhanshu Dhulia Sri B.N. Singh Sri S.K. Shukla Sri Chandra Narain Tripathi Sri Murlidhar Counsel for the Respondents: Sri S.N. Srivastava Sri Shishir Kumar Sri S.K. Rai Sri K.L. Grover Sri U.N. Sharma (S.S.C.) C.S.C. Constitution of India, Article 226/227 with Army Act-Section-34-member of 332 INDIAN LAW REPORTS ALLAHABAD SERIES [2012 Arm Forces-punishment-of 7 years rigorous imprisonment by Court Martialmatter relates to Service-not covered under Section 14 (3) (a)-petition stood transferred before Army Tribunal. Held: Para 10 The cause of action of the present Writ Petition as noted above, is evidently such as falls within the jurisdiction of the Tribunal after enforcement of the Act. This is evident from the provisions contained in Section 14 read with Section 3(o) of the said Act as well as Section 15 of the said Act. It may be mentioned that cause of action of the present Writ Petition would not fall within the exception given in subclause (iv) of clause (o) of Section 3 of the said Act, as in the present case Summary General Court Martial of the petitioner was held wherein seven years rigorous imprisonment was awarded. Case law Discussed: 2010 (3) ADJ 593; 2010 (4) ADJ 251 (DB); Order dated 28.10.2010 passed in Special Appeal Defective No. 218 of 2006 [Anil Kumar Singh Vs. Union of India & Another]; Order dated 6.12.2010 passed in Civil Misc. Writ Petition No. 21559 of 2002 [ Smt. Indrawati Singh Vs. Union of India and others];Order dated 6/12/2010 passed in Civil Misc. Writ Petition No. 21559 of 2002 [Smt. Indrawati Singh Vs. Union of India and others]; Order dated 20th January 2011 passed in Civil Misc Writ Petition No. 43411 of 1999 [Ic-40241h Major Anil Kumar Vs. Union of India and others]. (Delivered by Hon'ble S.P. Mehrotra,J.) 1. Case called out in the revised list. 2. Shri Chandra Narain Tripathi, learned counsel for the petitioner and Shri S.K. Rai, learned counsel for the respondents are present. 3. The petitioner was holding the post of Second Lieutenant in the Indian Army. The petitioner was charged, and he faced Court Martial at Niyari in the year 1991. By the order dated 7.8.1991, the Court Martial sentenced the petitioner for seven years rigorous imprisonment and also cashiered the petitioner from the service. The said order dated 7.8.1991 was confirmed by the order dated 4.11.1991 passed by the GOC-in-Command (Northern Command). 4. The petitioner filed Post Confirmation Petition under Section 164(2) of the Army Act, 1950 before the Central Government and the Chief of Army Staff. By the order dated 10.8.1993, the Union of India, Ministry of Defence dismissed the said Post Confirmation Petition filed by the petitioner. 5. The present Writ Petition was thereafter filed by the petitioner, interalia, praying for quashing the said orders dated 7.8.1991, 4.11.1991 and 10.8.1992. 6. Thus, the subject matter of the Writ Petition pertains to service matter in respect of the petitioner as well as the sentence awarded to the petitioner by the Court Martial. The petitioner, as is evident from a perusal of the Writ Petition, was a member of the Armed Forces covered by the Army Act, 1950. 7. In Devi Saran Mishra Vs. Union of India and Others, 2010 (3) ADJ 593 (paragraphs 23, 24, 25, 26 and 27), a learned Single Judge of this Court has considered in detail the provisions of the Armed Forces Tribunal Act, 2007 1 All IInd Lt.Shatrughan Singh Chauhan V. Union of India and another 333 (in short "the Act") in the light of various judicial decisions, and has held that in case, the cause of action involved in a Writ Petition is such as falls within the jurisdiction of the Tribunal after enforcement of the Armed Forces Tribunal Act, 2007, such cause of action has to be adjudicated upon in the first instance by the Tribunal. It is only after the decision of the Tribunal, that the matter would come to the High Court under Article 226/227 of the Constitution of India. 8. In view of this, it has been laid down that the Writ Petitions pending before this Court, wherein, the cause of action is such as would fall within the jurisdiction of the Tribunal after enforcement of the Armed Forces Tribunal Act, 2007, would stand transferred to the Tribunal for adjudication in view of Section 34 of the said Act. 9. The above decision of the learned Single Judge has been followed by the Division Benches of this Court in the following decisions: (A) Order dated 22.03.2010 passed in Civil Misc. Writ No. 15363 of 2007 [(Late ) Brig. (Retd.)Gaj Raj Singh Siwach & others Vs. Union of India & others], since reported in 2010 (4) ADJ 251 (DB). (B) Order dated 28.10.2010 passed in Special Appeal Defective No. 218 of 2006 [Anil Kumar Singh Vs. Union of India & Another]. (C) Order dated 6.12.2010 passed in Civil Misc. Writ Petition No. 21559 of 2002 [ Smt. Indrawati Singh Vs. Union of India and others]. (D) Order dated 6/12/2010 passed in Civil Misc. Writ Petition No. 21559 of 2002 [Smt. Indrawati Singh Vs. Union of India and others] (E) Order dated 20th January 2011 passed in Civil Misc Writ Petition No. 43411 of 1999 [Ic-40241h Major Anil Kumar Vs. Union of India and others]. 10. The cause of action of the present Writ Petition as noted above, is evidently such as falls within the jurisdiction of the Tribunal after enforcement of the Act. This is evident from the provisions contained in Section 14 read with Section 3(o) of the said Act as well as Section 15 of the said Act. It may be mentioned that cause of action of the present Writ Petition would not fall within the exception given in sub-clause (iv) of clause (o) of Section 3 of the said Act, as in the present case Summary General Court Martial of the petitioner was held wherein seven years rigorous imprisonment was awarded. 11. In view of the above, it is apparent that the present Writ Petition is to be transferred to the Tribunal under Section 34 of the Act. 12. We direct accordingly. 13. The Registry is directed to take appropriate steps in this regard. --------- 334 INDIAN LAW REPORTS ALLAHABAD SERIES [2012 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALAHABAD 20.03.2012 BEFORE THE HON'BLE ARUN TANDON,J. Civil Misc. Writ Petition No. 37087 of 2011 Ram Narain Singh ...Petitioner Versus D.I.O.S. and others ...Respondents Counsel for the Petitioner: Sri K.J.Khare Sri A.K.Pandey Sri P.N.Saxena Sri Brijesh Kumar Singh Sri K.K.Singh Sri R.N.Singh Sri S.N.Singh Counsel for the Respondents Sri H.L.Pandey Sri A.K.Malviya Smt. Maya Bajpai C.S.C. Constitution of India,Art-226Appointment on short term vacancycaused due to medical leave of Mr. 'A'-after death of 'A'-short term vacancy automatically converted in substantive vacancy-continuation on strength of interim order-no right to claim regularization under section 33b(i) of Board Act 1982 can be claimed. Held: Para 7 In view of the aforesaid, this Court has no hesitation to record of merely because the petitioner has continued because of interim order passed by this Court in present writ petition which is otherwise liable to be dismissed on merits, he will get no right to seek regularisation on the strength of his working under the interim order. Case law discussed: (1997) 2 SCC 556 (Delivered by Hon'ble Arun Tandon,J.) 1. Petitioner before this Court seeks quashing of the order of Principal of Mahabir Intermediate College, Malikpura, Ghazipur dated 08.11.1991 and a writ of mandamus directing the respondents to permit the petitioner to continue as ad-hoc Lecturer (Civics) in the said institution and to pay him salary accordingly. Facts in short on record are as follows. 2. One Chandrika Rai, who was working as Lecturer (Civics) in Mahabir Intermediate College, applied for medical leave w.e.f. 01.08.1989 for a period of six months. This leave was sanctioned under the order dated 14.12.1989. Against this short term vacancy, the petitioner was appointed for a period of six months w.e.f. 11.08.1989 by the Committee of Management. The said appointment was approved by the District Inspector of Schools under order dated 14.12.1989. The leave vacancy was extended from time to time and the petitioner also continued to function with the approval of the District Inspector of Schools during these extended period. The last approval granted by the District Inspector of Schools is dated 07.03.1991, copy whereof is enclosed as Annexure-2 to this petition. Chandrika Rai is stated to have expired on 06.11.1991 accordingly the principal of the institution informed the petitioner that his services would come to an end on 07.11.1991.