# D.S. Nakara v. Union of India 1983 (1)

- **Citation:** (2008) 3 ILRA 975
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-08-26
- **Case number:** Civil Misc. Writ Petition No. 43867 of 2008
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/d-s-nakara-v-union-of-india-1983-1-41291
- **Pages:** 6

## Headnote

Constitution of India, Article 226-Tenure
appointment-terminable without noticeautomatically comes to an end after
expiry of particular term-cannot be
extended by judicial order-no mandamus
can be issued.

Held: Para 5
976 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
The appointment of the petitioner being
for a fixed tenure, she has no right to
continue beyond the period indicated in
the letter of appointment. It is evident
that the appointment made is time
bound. Extension of appointment by
judicial
order
therefore
is
not
permissible.
Case law discussed:
(2002) 2 UPLBEC 1373, 1992 (4) SCC 33, Writ
Petition No. 20871 of 2006 Dr Vijay Kumar
Singh & others vs. State of U.P. & others, JT
2006 (4) SC 420, Civil Misc. Writ Petition No.
812 (S/B) of 2007, Dr. Manish Dixit and others
Vs. State of U.P. and others.

## Text

3 All] Km. Poonam Baghel V. State of U.P. and others
975
worked in a institution which was
provided grant in aid. Rule 3 of the
aforesaid Rules clearly provides that it is
applicable
to
permanent
employees
serving
in
State
aided
education
institutions. Rule 3 reads as under:

"3. These rules shall apply to permanent
employees
serving
in
State
aided
educational institutions of the following
categories run either by a Local Body or
by a Private management and recognised
by a competent authority as such for
purposes of payment of grant-in-aid.

(1) Primary Schools;
(2) Junior High Schools;
(3) Higher Secondary Schools;
(4) Degree Colleges;
(5) Training Colleges."

8. It is clear case of the respondents
that the institution in question was
brought in grant-in-aid list in March 1961
though the petitioner served therein prior
thereto. Therefore, U.P. Contributory
Provident-Insurance-Pension Rules which
came into force on 1.10.1964 are not
applicable at all. Learned counsel for the
petitioner could not place any other
provision to substantiate his claim that the
said service can be counted. Pension is
not a bounty but as a matter of fact, a
right, yet the mode and manner of its
payment is governed strictly by relevant
Rules. Unless the Rules provide, no
person can claim a particular service in a
particular employment for counting as
qualifying service. The Apex Court, in
D.S. Nakara Vs. Union of India 1983 (1)
SCC 305 while holding pension as a right,
observed as follows:

"pension is a right and the payment
of it does not depend upon the discretion
of the Government but is governed by the
rules and a government servant coming
within those rules is entitled to claim
pension. It was further held that the grant
of pension does not depend upon anyone's
discretion." (Para 20)

9. Learned counsel for the petitioner
could not place before the Court any
provision under which the services
rendered in a recognised but un-aided
Non-Government Junior High School
could have been counted.

10. In view of the aforementioned
discussion, I do not find any merit in this
petition. It is accordingly, dismissed. No
order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.08.2008

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 43867 of 2008

Km. Poonam Baghel

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri. H.N. Sharma

Counsel for the Respondents:
S.C.

Constitution of India, Article 226-Tenure
appointment-terminable without noticeautomatically comes to an end after
expiry of particular term-cannot be
extended by judicial order-no mandamus
can be issued.

Held: Para 5
976 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
The appointment of the petitioner being
for a fixed tenure, she has no right to
continue beyond the period indicated in
the letter of appointment. It is evident
that the appointment made is time
bound. Extension of appointment by
judicial
order
therefore
is
not
permissible.
Case law discussed:
(2002) 2 UPLBEC 1373, 1992 (4) SCC 33, Writ
Petition No. 20871 of 2006 Dr Vijay Kumar
Singh & others vs. State of U.P. & others, JT
2006 (4) SC 420, Civil Misc. Writ Petition No.
812 (S/B) of 2007, Dr. Manish Dixit and others
Vs. State of U.P. and others.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. The grievance of the petitioner is
that she was appointed as Lecturer vide
appointment letter dated 11.10.2007 in
Dayalbagh Educational Institute (Deemed
University) at Agra. Though the said
appointment was for a period of one year
being a fixed term temporary appointment
but the petitioner is entitled to continue
even thereafter since no person on the
regular basis has been appointed on the
said post.

2. However, I do not find any
substance in the submission for the reason
that the petitioner has no legal right to
continue
beyond
the
term
of
his
appointment letter. The appointment letter
clearly provides as under:

"I am directed to inform you that the
Managing Council for the Non-University
General
Educational
Institute
has
appointed you as Lecturer in Home
Science in the DEI Prem Vidyalaya Girls
Intermediate College on temporary (fixedterm) basis for a period of one year only
from the date you assume charge of the
post, on a starting basic pay of Rs.5500/-
per month in the pay scale of Rs.5000175-8650 plus admissible allowances
under the rules of the Institute on the
following terms and conditions:

1. You are appointed on temporary
(fixed-term) basis against an existing
vacancy which is likely to be filled up on
regular basis and action for filling it up
on regular basis is under process,
therefore, your said service shall stand
automatically terminated on expiry of
your temporary (fixed-term) appointment
or on resumption of duty by a regular
incumbent on the post, whichever is
earlier.
2. This
temporary
(fixed-term)
appointment can also be terminated by
either of the parties by giving one month's
notice or by paying one month's salary in
lieu thereof."

3. Clause 5 thereof further reads as
under:

"5.
This
temporary
(fixed-term)
appointment of yours will not confer any
prescriptive
right
for
your
future
absorption in any service of the Institute."

4. In view of the aforesaid terms and
conditions of appointment letter it is
evident that she was a tenure appointee
for one year without any claim for
renewal after the tenure is over.

5. It is not in dispute that as per the
terms of appointment, engagement of the
petitioner was only for a particular session
and by efflux of time the same would
come to an end. The question is whether
the petitioner can claim a right to continue
in
institution
despite
the
aforesaid
condition of appointment. The letter of
appointment in effect would already lose
its efficacy by efflux of time that it would
3 All] Km. Poonam Baghel V. State of U.P. and others
977
suo motu lapse on expiry of tenure.
Whether
the
petitioner
in
such
circumstance can be directed to continue
even beyond that is the moot question to
be considered and answered here. In my
view reply would be in negative. The
appointment of the petitioner being for a
fixed tenure, she has no right to continue
beyond the period indicated in the letter
of appointment. It is evident that the
appointment
made
is
time
bound.
Extension of appointment by judicial
order therefore is not permissible. A
similar
controversy
came
up
for
consideration before a Division Bench of
this Court in Alok Kumar Singh (Dr.) &
15 others Vs. state of U.P. & others,
(2002) 2 UPLBEC 1373 wherein it has
been held that the petitioner cannot claim
any right to continue in service beyond
the period of appointment provided in the
letter of appointment.

6. Besides, the appointment of the
petitioner, a fixed term, would come to an
end automatically by efflux of time. In
case the contention of the petitioner is
accepted, it would amount to re-writing
the appointment letter allowing the
petitioner to continue without there being
any letter of appointment issued by the
competent authority for a period after the
tenure is over. In Director, Institute of
Management Development, U.P. vs.
Pushpa Srivastava (Smt.), 1992 (4) SCC
33 the Hon'ble Apex Court held that the
appointment, which is made for a fixed
tenure comes to an end on the expiry of
the period of appointment provided in the
letter of appointment and the incumbent
need not be terminated as the termination
of employment comes automatically by
efflux of time. In this case also,
admittedly,
the
appointment
of
the
petitioner is for fixed tenure and in case
the contention of the petitioner is accepted
it will amount to giving an appointment
by this Court for the period subsequent
there to substituting itself to the position
of appointing authority. This is neither
permissible in law nor should be done.
When a procedure is prescribed to do a
thing in a particular manner, it should not
be done otherwise. Similar view has been
taken by this Court in Writ Petition No.
20871 of 2006 Dr Vijay Kumar Singh &
others vs. State of U.P. & others,
decided
on
25.4.2006.
Further
a
Constitution Bench of the Apex Court in
Secretary, State of Karnataka & others
Vs. Uma Devi & others-JT 2006 (4) SC
420, in para 34 of the judgment has
observed as under-

"If it is a contractual appointment,
the appointment comes to an end at the
end of the contract, if it were an
engagement or appointment on daily
wages or casual basis, the same would
come to an end when it is discontinued."

7. Learned counsel for the petitioner
further submits that on account of
unemployment and lack of bargaining
position, the petitioner cannot negotiate
with the respondents on equal terms and
therefore, the condition of engagement on
contractual basis for one session is
exploitative and is arbitrary. I am afraid
that even this submission cannot be
accepted. Rejecting similar argument in
Uma Devi (Supra), the Apex Court in
para 36 of the judgment has observed as
under-

"It is not as if the person who accepts
an engagement either temporary or
casual in nature, is not aware of the
nature of his employment. He accepts the
employment with eyes open. It may be
978 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
true that he is not in a position to
bargain-not at arms length- since he
might have been searching for some
employment so as to eke out his livelihood
and accepts whatever he gets. But on that
ground alone, it would not be appropriate
to jettison the constitutional scheme of
appointment and to take the view that a
person who has temporarily or casually
got employed should be directed to be
continued permanently. By doing so, it
will be creating another mode of public
appointment which is not permissible. If
the court were to void a contractual
employment of this nature on the ground
that the parties were not having equal
bargaining power, that too would not
enable the court to grant any relief to that
employee. A total embargo on such casual
or temporary employment is not possible,
given the exigencies of administration and
if imposed, would only mean that some
people who at least get employment
temporarily, contractually or casually,
would
not
be
getting
even
that
employment when securing of such
employment brings at least some succour
to them. After all, innumerable citizens of
our vast country are in search of
employment and one is not compelled to
accept a casual or temporary employment
if one is not inclined to go in for such an
employment. It is in that context that one
has to proceed on the basis that the
employment was accepted fully knowing
the nature of it and the consequences
flowing from it. In other words, even
while accepting the employment, the
person concerned knows the nature of his
employment. It is not an appointment to a
post in the real sense of the term."

8. A Division Bench has reiterated
the aforesaid view after following the
aforesaid judgment in Sarvesh Kumar
Singh Vs State of U.P and others, Writ
Petition No. 25849 of 2006 decided on
11.05.2006; and Amar Nath Tiwari Vs
State of U.P and others, Writ Petition
No.
28632
of
2006
decided
on
23.05.2006.

9. Learned counsel for the petitioner
sought to place reliance on certain interim
orders passed by this Court at the time of
admission permitting the petitioners to
continue till candidates regularly selected
are available. However, this aspect of the
matter has been considered by a Division
Bench of this Court in Civil Misc. Writ
Petition No. 812 (S/B) of 2007, Dr.
Manish Dixit and others Vs. State of
U.P. and others decided on 19.7.2007
and this Court held as under:

"Learned counsel for the petitioner
sought to place reliance on an interim
order dated 23.05.2007 passed by this
Court in W.P.No.221 (S/B) of 2007 and
the judgment dated 15.11.2006 passed by
a Division Bench of this Court in
W.P.No.1560 (S/B) of 2006. We find, from
perusal of the aforesaid order, that the
condition of appointment and various
issues which have been considered by us
in this case were neither raised nor
argued nor decided in the aforesaid
orders. Therefore in our view, the said
orders cannot be treated to be a binding
precedent to give relief sought by the
petitioners
in
this
writ
petition
particularly when the various issues
which have been considered by us in the
writ petition have already been decided
finally
by
several
Division
Bench
judgments of this Court as referred
hereinabove. Learned counsel for the
petitioners further placed some orders
passed by this Court relating to disposal
of the writ petition at the admission stage,
3 All] Km. Poonam Baghel V. State of U.P. and others
979
copies whereof are on page nos. 38-39 of
the writ petition but there also we find,
that the issues as have been considered
here were not raised in those cases.
Therefore the aforesaid judgments cannot
be said to be binding precedent on the
various
issues
which
have
been
considered by this Court in the present
case."

10. At this stage, it would also be
appropriate to notice that earlier it was
held by the Apex Court that right to earn
livelihood is part and parcel of ''right to
life' under Article 21 of the Constitution
and this was equated with the right to
employment. However, the Apex Court in
Uma Devi (supra) has rejected this
submission that Article 21 would include
the right to employment and in para 42 of
the judgment has held as under:-

"42. The argument that the right to
life protected by Article 21 of the
Constitution of India would include the
right to employment cannot also be
accepted at this juncture. The law is
dynamic and our Constitution is a living
document. May be at some future point of
time, the right of employment can also be
brought in under the concept of right of
life or even included as a fundamental
right. The new statute is perhaps a
beginning. As things now stand, the
acceptance of such a plea at the instance
of the employees before us would lead to
the consequence of depriving a large
number
of
other
aspirants
of
an
opportunity to compete for the post or
employment. Their right to employment, if
it is a part of right to life, would stand
denuded by the preferring of those who
have got in casually or those who have
come through the back door. The
obligation cast on the State under Article
39(a) of the Constitution of India is to
ensure that all citizens equally have the
right to adequate means of livelihood. It
will be more consistent with that policy if
the courts recognise that an appointment
to a post in Government service or in the
service of its instrumentalities, can only
be by way of a proper selection in the
manner recognised by the relevant
legislation in the context of the relevant
provisions of the Constitution. In the
name of individualizing justice, it is also
not possible to shut our eyes to the
constitutional scheme and the right of the
numerous as against the few who are
before the court. The Directive Principles
of State Policy have also to be reconciled
with the rights available to the citizen
under Part III of the Constitution and the
obligation of the State to one and all not
to a particular group of citizens. We,
therefore, overrule the argument based on
Article 21 of the Constitution."

11. The Apex Court also considered
the question as to whether a writ of
mandamus can be issued by the Court
directing the employer either to absorb the
employee in permanent service or to
allow him to continue, and in this context
has held as under:

"In order to that a mandamus may
issue to compel the authorities to do
something, it must be shown that the
statute imposes a legal duty on the
authority and the aggrieved party had a
legal right under the statute or rule to
enforce it. "

12. It is not the case of the petitioner
that respondents are under a legal duty or
the petitioner has statutory or fundamental
right to seek direction to continue the
980 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
petitioner till regular selected candidate is
available.

13. In view of the aforesaid
discussion, I do not find any merit in this
writ petition. Dismissed. No order as to
costs.
---------