# Division Bench in Nagesh Chandra v. Chief Engineer, Vivasthan Ga Warg &

- **Citation:** (2012) 1 ILRA 165
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-02-21
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/division-bench-in-nagesh-chandra-v-chief-engineer-vivasthan-ga-warg-42083
- **Pages:** 6

## Headnote

Constitution
of
India,
Article
226Regularization-working as camp clerkcontinuously w.e.f. 01.10.1983 to July
1987-subsequent working in pursuance
of interim order-appointment de horse
the rules can not claim regularization as
matter of right-by subsequent order
dated 22.04.191 appointment on class
4th post as temporary work charge
employee-entire
functioning
of
petitioner shall be treated working on
class
4th
Post-entitled
for
every
consequential benefits from 22.04.1991No recovery of excess amount (if already
paid treating as camp clerk) shall be
made.

Held: Para 21

In the peculiar facts and circumstances
of this case, in my view, ends of justice
would meet and to this Dr. L.P. Mishra,
learned counsel for the petitioner and Sri
A.P.Singh
learned
counsel
for
the
respondents also agree that petitioner
shall be treated to have continued to
work as a Class IV employee pursuant to
office order dated 22.4.1991 with effect
166 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

from the date of said order and shall be
entitled for all consequential benefits
accordingly. The work discharged by the
petitioner vis a vis Class III post, if any,
shall be treated as has been performed
pursuant to the appointment letter dated
22.4.1991. It is also made clear that in
case and as a matter of fact if salary,
already paid to the petitioner during the
pendency of this writ petition is found in
excess to what emoluments he would
otherwise been entitled pursuant to the
order dated 22.4.1991, such excess
amount shall not be recovered from him.
Case law discussed:
Special Appeal No.351 of 2006 (Nand Kishore
Shukla Vs. State of U.P. and others) decided
on 15.12.2009 ; JT 2011 (2) SC 164; 2007 (2)
ESC 987; AIR 1975 Allahabad 280; 1986 (4)
LCD 196; AIR 1994 Allahabad 273; JT 2009
(2) SC 520

## Text

1 All] S.J.H. Rizvi V. U.P.Avas Evam Vikas Parishad and others

165
Division Bench in Nagesh Chandra Vs.
Chief Engineer, Vivasthan Ga Warg &
Ors. decided on 7th January, 2011 in
Special Appeal No.36 of 2011 and Court
said:

"Though in the judgment it has been
held that when the rules are prevailing for
relaxation for making the application, a
member of the family, on attaining
majority, can file an application for due
consideration but in the judgment itself it
has been held that the law relating to
compassionate appointment is no longer
res integra. The right of compassionate
appointment does not confer a right but it
does
give
rise
to
the
legitimate
expectation in a person covered by the
rules that his application should be
considered, if otherwise he meets with the
requirement."

14. In such circumstances, if the
petitioner is not inclined to accept the
aforesaid appointment he cannot claim
that
he
should
be
appointed
on
compassionate to the better status which
shows that the petitioner is not actually
facing the condition of penury and
appointment on compassionate basis is
not being claimed on account of financial
scarcity but to claim an office of the status
by short circuit way ignoring the process
of regular selection which is contrary to
the very concept of compassionate
appointment.

15. Dismissed.

16. Interim order, if any, stands
vacated.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.02.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Service Single No. - 3185 of 1991

S.J.H.Rizvi

 ...Petitioner
Versus
U.P.Avas Evam Vikas Parishad and others

 ...Respondent

Counsel for the Petitioner:
Dr.L.P.Misra

Counsel for the Respondents:
Sri Prahlad
Dr.Ashok Nigam
Sri Nakul Dubey
Sri Umesh Chandra Pandey

Constitution
of
India,
Article
226Regularization-working as camp clerkcontinuously w.e.f. 01.10.1983 to July
1987-subsequent working in pursuance
of interim order-appointment de horse
the rules can not claim regularization as
matter of right-by subsequent order
dated 22.04.191 appointment on class
4th post as temporary work charge
employee-entire
functioning
of
petitioner shall be treated working on
class
4th
Post-entitled
for
every
consequential benefits from 22.04.1991No recovery of excess amount (if already
paid treating as camp clerk) shall be
made.

Held: Para 21

In the peculiar facts and circumstances
of this case, in my view, ends of justice
would meet and to this Dr. L.P. Mishra,
learned counsel for the petitioner and Sri
A.P.Singh
learned
counsel
for
the
respondents also agree that petitioner
shall be treated to have continued to
work as a Class IV employee pursuant to
office order dated 22.4.1991 with effect
166 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

from the date of said order and shall be
entitled for all consequential benefits
accordingly. The work discharged by the
petitioner vis a vis Class III post, if any,
shall be treated as has been performed
pursuant to the appointment letter dated
22.4.1991. It is also made clear that in
case and as a matter of fact if salary,
already paid to the petitioner during the
pendency of this writ petition is found in
excess to what emoluments he would
otherwise been entitled pursuant to the
order dated 22.4.1991, such excess
amount shall not be recovered from him.
Case law discussed:
Special Appeal No.351 of 2006 (Nand Kishore
Shukla Vs. State of U.P. and others) decided
on 15.12.2009 ; JT 2011 (2) SC 164; 2007 (2)
ESC 987; AIR 1975 Allahabad 280; 1986 (4)
LCD 196; AIR 1994 Allahabad 273; JT 2009
(2) SC 520

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

1. Sri A.P.Singh, learned counsel
appearing for the respondents stated that
supplementary counter affidavit filed on
08.12.2011 be ignored and is not placing
reliance thereon. The Court thus proceeded
by ignoring the said supplementary counter
affidavit.

2. Heard Dr. L.P.Mishra, learned
counsel for the petitioner and Sri A.P.Singh
learned counsel for the respondents.

3. The writ petition is directed against
the order dated 22.4.1991 (Annexure 7 to
the writ petition) and also decision dated
25.3.1989 taken by U.P. Avas Evam Vikas
Parishad, Lucknow (hereinafter referred to
as "Parishad") referred to in the order dated
22.4.1991. The petitioner has also sought a
mandamus commanding the respondents to
treat the petitioner as a regular Class-III
employee in the establishment of Parishad
and to pay salary admissible to a Clerk i.e.
in the Scale of 950-1500 w.e.f. 1.1.1986 and
360-550 w.e.f. 1.10.1983 and also as
revised from time to time and not to appoint
any person in the establishment of Parishad
either in the Circle or Division or SubDivision before regularizing the petitioner
as Clerk.

4. Admittedly, petitioner was not
engaged initially by any written order of
appointment. He appears to have been
engaged on daily wage basis without
following the procedure prescribed in law.
The petitioner claimed in para 1 of the writ
petition that he was engaged as a Muster
roll employee which fact has been admitted
by the respondents in the counter affidavit,
as is evident from para 7 of the counter
affidavit. The respondent, however, further
says that the petitioner was employed
according to the availability of work and
need.

5. The case set up by the petitioner is
that there is one post of Camp Clerk in each
Sub-Division of the Parishad. The then
Assistant Engineer-II, Basti wrote a letter
on 3.12.1984 to respondent No.5 intimating
that there was no Camp Clerk in the said
Sub-Division and therefore one Camp Clerk
may be made available. The Superintendent
of Works, Faizabad vide letter dated
11.4.1983 directed that one Vinod Kuamr
Srivastava, who was Store Keeper working
in Sub-Division be deployed to perform
duties of Camp Clerk. However, Sri Vinod
Kumar Srivastava did not join to perform
the duties of Camp Clerk and thereafter the
petitioner was posted as Camp Clerk under
Assistant Enginer-II, Basti w.e.f. 1.10.1983.
He functioned as such till July, 1987
without any break. In support of the
aforesaid averments, reference has been
made to the then Assistant Engineer's letter
dated 21.5.1986 (Annexure 2 to the writ
petition) wherein it has been mentioned that
1 All] S.J.H. Rizvi V. U.P.Avas Evam Vikas Parishad and others

167
in absence of any other employee, work of
Office Clerk was taken from the petitioner
and therefore, he is recommended for
appointment as Assistant Grade III. Besides,
in the office order dated 30.8.1990 issued
by Sub Divisional Officer Basti, petitioner's
duties were shown as Pairokar in Court
cases. He also refers to a letter dated
7.6.1984 (Annexure 5 to the writ petition)
whereby Assistant Engineer II, Katra Yojna
Basti has given details of petitioner as Clerk
working w.e.f. 1.10.1983 on daily wage
basis.
The
petitioner
requested
the
Superintendent Engineer to appoint him on
routine grade clerk since has performed
duties of Clerk on daily wage basis and the
said application was duly recommended by
the then Assistant Engineer-II. However,
ignoring the claim of the petitioner for
appointment on a Class III post, by means
of the impugned order dated 22.4.1991,
petitioner has been appointed as non regular
work charged employee in the scale of 305390, which is a scale applicable to Class IV
employee and the petitioner has been
transferred and posted from Gorakhpur to
Agra.

6. Dr. L.P. Mishra, learned counsel
contended that since petitioner has been
performing duties of a Class III employee,
he was entitled to be regularized as a Class
III employee and not a Class IV employee
and therefore, the impugned order to the
extent it appoint the petitioner as a Class IV
employee is illegal and liable to be set aside.

7. During the course of argument it is
not disputed by learned counsel for the
petitioner that neither petitioner was
appointed as a Class III employee by any
written order nor that Assistant Engineer
was competent to make appointment on a
Class III post. He admits that competent
authority to make appointment on a Class
III post in Parishad was Superintendent of
Works and no order of appointment was
ever issued by the aforesaid authority.

8. The respondents, in the counter
affidavit, have clearly said that there is no
sanctioned post of Camp Clerk in the
Parishad
and
therefore,
petitioner's
contention that he has ever worked as Camp
Clerk is incorrect. He was a muster roll
employee to work as Chaukidar and was
engaged according to availability of work
and need on daily wage basis. He had no
right to hold the post having not been
recruited in accordance with law and rules
applicable for appointment on a Class III
post. The petitioner was a muster roll daily
wage employee, has been shown favour by
the respondents by giving him appointment
in regular pay scale, may be applicable to a
Class IV employee but he has no right at all
to claim his absorption, appointment or
regularization as a Class III employee. In
absence of any legal right of the petitioner,
the relief sought in the writ petition ought
not be granted.

9. Considering the fact that petitioner
was never appointed by the competent
authority to perform duties of a Class III
employee, the petitioner, in my view,
cannot have any right to claim appointment
on Class III post particularly when he has
never faced process of selection and
recruitment consistent with Article 16 of the
Constitution for appointment on Class III
post.
In
absence
of
any
order
of
appointment passed by competent authority,
no right can be claimed by any incumbent
for salary to such post as held by Division
Bench of this Court in Special Appeal
No.351 of 2006 (Nand Kishore Shukla Vs.
State of U.P. and others) decided on
15.12.2009 in which this court observed as
under:
168 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

"The plea that the appellant since was
ordered to look after the work of a higher
post in addition to his own duties, therefore,
he was entitled for salary in the given pay
scale, does not have any merit in the instant
case. The appellant is a substantively
appointed Cane Supervisor and he was
never given any charge of higher post or
officiating promotion on the post of Cane
Development Inspector by the competent
authority, namely, the Cane Commissioner.
May be that the Cane Development
Inspector had entrusted the work of a
higher post to the appellant in addition to
his own duties, but it has not been brought
to our notice that the Cane Development
Inspector was competent to issue such
orders. If the charge of the higher post was
entrusted to the appellant under the orders
passed by the Cane Development Inspector,
who was not competent to do so, this would
not give any right to the appellant to claim
salary of the higher post."

"Since no order of promotion or
entrusting the work of the higher post was
passed by the Cane Commissioner, no
rights can be said to be conferred upon the
appellant to claim salary of the higher
post."

10. The aforesaid observations are
squarely applicable to the facts of this case
disentitling the petitioner to claim any right
with regard to a Class III post.

11. Moreover, mere discharge of
duties of a particular nature without having
any right to hold the post under a valid
order issued by competent authority would
not entitle any person to claim any right to
continue on a particular post since principle
of holding over is not applicable in service
jurisprudence. The Apex Court in State of
Orissa Vs. Mamata Mohanti, JT 2011(2)
SC 164 has clearly said that right in law
exists only and only when it has a lawful
origin. The concept of adverse possession of
lien on post or holding over is not
applicable
in
service
jurisprudence.
Therefore, continuation of a person wrongly
appointed or never lawfully appointed on a
post shall not create any right in his favour.

12. At this stage, Dr. L.P.Mishra,
learned counsel for the petitioner submitted
that pursuant to an interim order passed by
this Court in writ petition the petitioner is
continuing to discharge his duties as
Pairokar of Court cases and therefore he
may not be dislodged therefrom.

13. It is well established that no cause
of action would found its basis on an
interim order passed by the Court when
ultimately final relief sought in the writ
petition is not to be granted and the writ
petition has to be dismissed. The interim
order passed on 12th June, 1991 reads as
under:

"....in case the petitioner has been
working continuously on a Class III post as
alleged since 1.10.1983 till date, he shall
not be required to join on Class IV post and
shall be allowed to continue on the post on
which he working."

14. However, the aforesaid order was
clarified on 18.3.1997 and the relevant
extract thereof reads as under:

"Petitioner shall therefore be entitled
to continuance of the pay scale for Class III
employees with effect from 1.3.1997. This
order shall remain subject to result of the
writ petition."

15. Therefore, petitioner's continuance
and his salary on Class III post if paid, was
1 All] S.J.H. Rizvi V. U.P.Avas Evam Vikas Parishad and others

169
clearly subject to result of the writ petition
and that too pursuant to an interim order.

16. Since the petitioner has no right,
as
already
discussed
above,
mere
continuance on the basis of an interim order
would not confer any benefit upon him.
This issue has been considered by a
Division Bench of this Court (in which I
was also a member) in Smt. Vijay Rani Vs.
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 Vs. 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. It must in
the circumstances take effect as if there was
no interim order."

17. The same principal has been
reiterated in the following cases:

(A) AIR 1975 Allahabad 280 Sri Ram
Charan Das V. Pyare Lal.

"In Shyam Lal Vs. 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) 1986 (4) LCD 196 Shyam
Manohar Shukla V. State of U.P.

"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 th*-e
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."

18. 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.
............."
170 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

19. Now, the present state of appair
is that admittedly petitioner has been
appointed on a Class IV post by order
dated 22.4.1991 and the respondents have
no objection in keeping the petitioner as a
Class IV employee in the pay scale
applicable to non regularized work charge
Class IV employee, pursuant to the order
dated 22.4.1991.

20. Sri A.P. Singh, learned counsel
appearing for the respondents submit that
petitioner did not submit his joining
pursuant to the office order dated
22.4.1991 but a fact respondents could not
controvert that petitioner is continuously
functioning
with
the
respondents
thereafter i.e. pursuant to interim order of
this Court, performing duties meant for a
Class III employee.

21. In the peculiar facts and
circumstances of this case, in my view,
ends of justice would meet and to this Dr.
L.P. Mishra, learned counsel for the
petitioner and Sri A.P.Singh learned
counsel for the respondents also agree that
petitioner shall be treated to have
continued to work as a Class IV employee
pursuant to office order dated 22.4.1991
with effect from the date of said order and
shall be entitled for all consequential
benefits
accordingly.
The
work
discharged by the petitioner vis a vis
Class III post, if any, shall be treated as
has been performed pursuant to the
appointment letter dated 22.4.1991. It is
also made clear that in case and as a
matter of fact if salary, already paid to the
petitioner during the pendency of this writ
petition is found in excess to what
emoluments he would otherwise been
entitled pursuant to the order dated
22.4.1991, such excess amount shall not
be recovered from him.

22. At the pain of repetition it is
stated that pursuant to the aforesaid
directions, petitioner shall be entitled for
the benefits flowing from the order dated
22.4.1991 as applicable to other Class IV
employees working in work charge
establishment.

23. The writ petition is disposed of
with the aforesaid directions, observations
and discussion.

24. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.02.2012

BEFORE
THE HON'BLE UMA NATH SINGH,J.
THE HON'BLE RITU RAJ AWASTHI,J.

Misc. Bench No. - 3277 of 2001

Dr. Manish and others ...Petitioners
Versus
State of U.P. Through Secretary,Medical
Education & Training
 ...Respondents

Counsel foe the Petitioner:
Sri A.R. Masoodi

Counsel for the Respondents:
C.S.C.
Sri Sandeep Dixit
Sri Umesh Chandra

Constitution of India, Article 226-payment
of stipend-petitioner perusing M.D.M.S
course-on basis of first counseling-on
merit of 45%-due to non availability of
reserve category transferred to general
category-in furtherance of final judgment
third counseling-petitioner change their
choice undertaking about no claim of
stipend-held-without adjusting the earlier
amount-entitled for full stipend during
period-perusing P.G. course-undertaking
will
not
come
in
way.