# Famina Singh v. State of U.P. & Ors

- **Citation:** (2022) 8 ILRA 60
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-12
- **Case number:** Special Appeal No. 530 of 2019
- **Bench:** Pritinker Diwaker, Ashutosh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/famina-singh-v-state-of-u-p-ors-48924
- **Pages:** 4

## Headnote

A. Service Law - Constitution of India -
Article 226 - Writ - Maintainability -
Female Staff Nurse - Appointment on the
contract basis - Termination from service
- Right of contract-based employee to get
renewal of service, how far exist -
Appointment governed by the statute
distinguished
from
the
appointment
governed by a contract - No contract
employee has a right to have his or her
contract renewed from time to time -
Yogesh Mahajan's case relied upon. (Para
4, 6 and 7)
Special Appeal dismissed. (E-1)
List of Cases cited:-

## Text

60 INDIAN LAW REPORTS ALLAHABAD SERIES
finally. The order therefore of the Tribunal
in this case allowing reinstatement as an
interim relief or in lieu thereof payment of
full wages is manifestly erroneous and must
therefore be set aside."

6. In U.P. Rajya Krishi Utpadan
Mandi Parishad & Ors. vs. Sanjiv
Rajan, 1993 Supp (3) SCC 483, it was
held by this Court that it was desirable
that an order of suspension passed by a
competent
authority
should
not
be
ordinarily interfered by an interlocutory
order pending the proceeding. It was
observed:

"Whether the employees should
or should not continue in their office
during the period of inquiry is a matter to
be assessed by the authority concerned
and ordinarily, the Court should not
interfere with the orders of suspension
unless they are passed mala fide and
without there being even a prima facie
evidence
on
record
connecting
the
employees
with
the
misconduct
in
question."

7. In State of Haryana vs. Suman
Dutta, (2000) 10 SCC 311, this Court set
aside the order passed by the High Court
staying the order of termination as an
interim
measure
in
the
pending
proceeding. It was observed:

"We are clearly of the opinion
that the High Court erred in law in
staying the order of termination as an
interim measure in the pending writ
petition. By such interim order if an
employee is allowed to continue in
service and then ultimately the writ
petition is dismissed, then it would
tantamount to usurpation of public office
without any right to the same."

8. From the abovenoted decisions, it
is evident that the Apex Court has
consistently been of the view that by way
of an interim order the order
of
suspension termination, dismissal and
transfer etc. should not be stayed during
the pendency of the proceedings in Court.

9. In view of the above, we are of
the considered opinion that the impugned
order to the extent it stays the termination
order dated 6.4.2021 and permits the writ
petitioner to perform his duty as he was
discharging earlier and shall be paid his
salary which shall be subject to final
outcome cannot be sustained and is
accordingly set aside. The appeal is
allowed to the extent indicated above.

10. The writ petition shall be heard
on its merit upon exchange of the
pleadings as directed by the learned
Single Judge. We leave it open for the
parties to request the learned Single
Judge to decide the writ petition at an
early date.
----------
(2022) 8 ILRA 60
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.07.2022

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Special Appeal No. 530 of 2019

Famina Singh ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Sanjay Kumar Srivastava

Counsel for the Respondents:
8 All. Famina Singh Vs. State of U.P. & Ors.
61
C.S.C.

A. Service Law - Constitution of India -
Article 226 - Writ - Maintainability -
Female Staff Nurse - Appointment on the
contract basis - Termination from service
- Right of contract-based employee to get
renewal of service, how far exist -
Appointment governed by the statute
distinguished
from
the
appointment
governed by a contract - No contract
employee has a right to have his or her
contract renewed from time to time -
Yogesh Mahajan's case relied upon. (Para
4, 6 and 7)
Special Appeal dismissed. (E-1)
List of Cases cited:-
1. Rajesh Bhardwaj Vs U.O.I.; 2019 (2) ADJ 830
2. Yogesh Mahajan Vs Prof. R.C. Deka, Director,
All India Institute of Medical Sciences; 2018 (3)
SCC 218
(Delivered by Hon'ble Pritinker Diwaker, J.
&
Hon'ble Ashutosh Srivastava, J.)

1. This Intra Court Appeal has been
filed questioning the legality, propriety and
correctness of the judgment of the learned
Single Judge dated 29.03.2019 passed in
Writ (A) No.4359 of 2019 (Famina Singh
Vs. State of U.P. & 2 others) whereby the
learned Single Judge has found no good
ground to entertain the writ petition and
dismissed the same as it related to
termination of the contractual engagement
relying upon the Division Bench decision
rendered in Rajesh Bhardwaj Vs. Union of
India, reported in 2019 (2) ADJ 830.

2. It has been vehemently contended
by the learned counsel for the appellant that
the decision rendered in the case of Rajesh
Bhardwaj Vs. Union of India, relied upon
by the learned Single Judge does not lay
down the proposition of law that a writ
petition at the instance of a contractual
employee would not be maintainable and
the learned Single Judge manifestly erred
in
law
in
non-suiting
the
writ
petitioner/appellant on that score. Non
renewal of a contractual appointment very
much lies within the purview of writ
jurisdiction under Article 226 of the
Constitution of India. The writ petitioner
though initially appointed on the post of
Female Staff Nurse on contract basis vide
order dated 15.04.2015 had been working
continuously without break in service under
orders of extension being passed from time
to time. Vide order dated 12.03.2018 the
Respondent No.3 issued a notice to the
petitioner
that
her
services
will
be
terminated
after
giving
one
month
payment. Against the termination notice
issued by the Respondent No.3, the
petitioner filed a writ petition being Civil
Misc. Writ Petition No.8457 of 2018,
which was disposed of with a direction to
the petitioner to approach the respondent
authority for redressal of her grievances. In
pursuance of the order passed in the writ
petition, the petitioner filed a detailed
representation on 02.04.2018 before the
respondent authority which was rejected
vide order dated 10.05.2018. After rejection
of his representation the petitioner again
filed a writ petition being Writ Petition
No.4359 of 2019 which was dismissed vide
order dated 29.03.2019.

3. We have heard the learned counsel
for the petitioner/appellant and the learned
Standing Counsel for the State respondents
and have perused the record.

4.

The
factum
that
the
appellant/petitioner
was
appointed
on
contract basis vide order dated 15.04.2015
62 INDIAN LAW REPORTS ALLAHABAD SERIES
and such appointment was the contractual
appointment is not in dispute.

5. Having heard the learned counsel
for the appellant and having perused the
decision rendered in the case of Rajesh
Bhardwaj Vs. Union of India (Supra) we
find that the coordinate Bench while
dealing with the question Nos.2, 3 & 4
framed by it opined as under:-

"30. ........ In these circumstances,
in the cases like petitioner, consistently it
has been laid down that employment is
simply a part of contract. If employment is
terminated or contract of service is
terminated, Court shall not grant relief of
reinstatement, i.e. specific performance of
contract of personal service, as it is barred
by the provisions of Specific Relief Act,
1963 (hereinafter referred to as "Act,
1963") and, therefore, no remedy under
Article 226 shall be available since
employee, if complains about wrongful
termination of service, then must avail
remedy in common law by claiming
damages.

6. Then again in para 31 of the
aforesaid
judgment
while
drawing
a
distinction
between
nature
of
appointment/engagement
governed
by
statute or statutory rules i.e. governed by
"status" and governed by a contract of
service opined as under :-

"31.
.......
Nature
of
engagement/appointment of petitioner is not
to be governed by 'status' but by a 'contract of
service' entered into between master and
servant.
A
distinction
between
an
appointment under a contract and status was
noticed and explained by Supreme Court in
Roshan Lal Tandon Vs. Union of India AIR
1967 SC 1889. Court held that when a matter
is governed by status, the employee has no
vested contractual rights in regard to the
terms of service but where employment is
purely in the realm of a simple contract of
employment, it is strictly governed by terms
and conditions of employment settled
between the parties. To remind the difference
between
'status'
and
'contractual
appointment', we may take up case of a
Government Servant. Origin of employment
in a Government department is contractual.
There is an offer and acceptance in every case
but once appointed to the post or office, the
person appointed, i.e., Government Servant,
acquires a status and his rights and
obligations are no longer determined by
consent of both the parties but same are
governed by Statute or statutory rules which
may be framed and altered unilaterally by
employer, i.e., the Government. Legal
position of a Government Servant, thus, is
more one of 'status' than of a 'contract'. The
hallmark of 'status' is that attachment to a
legal relationship of rights and duties must be
by public law and not by mere agreement of
parties. Relationship between Government
(employer)
and
Government
Servant
(employee) is not like an ordinary contract of
service between a master and servant. The
legal relationship is something entirely
different, something in the nature of status. In
the language of jurisprudence, 'status' is a
condition of membership of a group, whereof
powers and duties are exclusively determined
by law and not by agreement between the
parties concerned. Thus, where appointment
and conditions of service are governed by
Statute, relationship of 'employer' and
'employee' is that of 'status' and not a mere
contract. However, in other cases, it is purely
a contract of service resulting in a
relationship of ordinary master and servant."

7. Recently, the Apex Court in the
case reported in 2018 (3) SCC 218 (Yogesh
Mahajan Vs. Prof. R.C. Deka, Director,
8 All. Deepak Yadav Vs. State of U.P. & Ors.
63
All India Institute of Medical Sciences)
while
dealing
with
the
contractual
appointment and non renewal of contract
refused relief observing as under:-

"6. It is settled law that no
contract employee has a right to have his
or her contract renewed from time to time.
That being so, we are in agreement with the
Central Administrative Tribunal and the
High Court that the petitioner was unable
to show any statutory or other right to have
his contract extended beyond 30th June,
2010. At best, the petitioner could claim
that the concerned authorities should
consider extending his contract. We find
that in fact due consideration was given to
this
and
in
spite
of
a
favourable
recommendation having been made, the All
India Institute of Medical Sciences did not
find it appropriate or necessary to continue
with his services on a contractual basis. We
do not find any arbitrariness in the view
taken by the concerned authorities and
therefore reject this contention of the
petitioner.

7. We are also in agreement with
the
view
expressed
by
the
Central
Administrative Tribunal and the High
Court that the petitioner is not entitled to
the benefit of the decision of this Court in
Uma Devi. There is nothing on record to
indicate that the appointment of the
petitioner on a contractual basis or on an
ad hoc basis was made in accordance with
any regular procedure or by following the
necessary rules. That being so, no right
accrues in favour of the petitioner for
regularisation of his services. The decision
in Uma Devi does not advance the case of
the petitioner."

8. In view of the above, we find no
error or illegality in the view taken by the
learned Single Judge in dismissing the writ
petition. The special appeal lacks merit and
is, accordingly, dismissed.
----------
(2022) 8 ILRA 63
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.08.2022

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ A No. 4054 of 2022

Deepak Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ghaus Beg, Lalta Prasad Misra

Counsel for the Respondents:
C.S.C.

A. Service Law - Departmental enquiry -
Minor penalty of censure entry - Charge of
being engaged in corrupt practice -
Creation of properties and assets in his
own name and relatives - Duty of St. -
Held, whenever there are allegations
particularly
relating
to
corruption
or
defalcation of funds from St. exchequer, it
is primary duty of the St. Government to
take immediate steps and hold preliminary
inquiry to verify the veracity of the
allegations, and stop any further such
activity. (Para 21)
B.
Complaint
of
corrupt
practice
-
Departmental
enquiry
-
GO
dated
09.05.1997 and 01.08.1997 provide for
making the complaint on affidavit - Noncompliance thereof, how far effect the
enquiry - Directory or mandatory -
Provisions of Government Orders dated
9th May, 1997 and 1st August, 1997 are
only to ensure that a public servant is not
harassed and is not faced with baseless
and false allegations. It is not the
mandate of the said Government Orders
that no preliminary inquiry can proceed