# Kumar Srivastava v. State of U.P. 2007

- **Citation:** (2012) 1 ILRA 334
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-03-20
- **Case number:** Civil Misc. Writ Petition No. 37087 of 2011
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kumar-srivastava-v-state-of-u-p-2007-39037
- **Pages:** 3

## Text

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.
1 All Ram Narain Singh V. D.I.O.S. and others
335

3. It is against the order dated
07.11.1991, the present writ petition has
been filed. Learned counsel for the
petitioner could not demonstrate any
illegality in the order of the principal. It
is settled law that once a short term
vacancy is converted into substantive
vacancy, the appointment against short
term vacancy comes to an automatic end
by operation of law reference Surendra
Kumar Srivastava vs. State of U.P. 2007
(1) ESC 118. In view of the said
Division Bench judgment of this Court,
this Court hardly finds no good ground
to interfere with the order of the
principal. The letter of the principal is
only an intimation of the true and
correct legal position qua the noncontinuance of the petitioner and the
consequences which follow.

4. Shri P.N. Saxena, Senior
Counsel, appearing for the petitioner,
contended that because of the interim
order granted by this Court in the
present writ petition, the petitioner has
continued
in
employment
and
in
between Section 33-B (1) has been
added to the U.P. Secondary Service
Selection Board Act, 1982. As per the
Section 33-B an ad-hoc appointee
against short term vacancy appointed
prior to 14th May, 1991 have been
directed to be regularised if the vacancy
stood
converted
into
substantive
vacancy
on
satisfaction
of
the
conditions
mentioned
in
the
said
section. It is his case that the petitioner
is entitled to such regularisation.

5. The contention raised by Shri
Saxena does not appeal to this Court.
Petitioner's
continuance
in
the
institution was because of an interim
order passed by this Court and not
because of any independent right. The
interim order would merge in the final
order. Therefore, when this Court come
to a conclusion that there is no illegality
in the order of principal putting an end
to the engagement of the petitioner and
the writ petition lacks merit. The interim
order would automatically fall with the
dismissal of the writ petition.

6. The Hon'ble Supreme Court in
the case of N. Mohanan Vs. State of
Kerala and others reported in (1997) 2
SCC 556 has explained that no rights
are
conferred
because
of
the
continuance under the interim order of
the Hon'ble High Court and the status of
the employee will not be altered only
because of he has continued under the
interim order.

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.

8. In view of the aforesaid, no
relief can be granted. Accordingly, writ
petition is dismissed. Interim order, if
any, stands discharged.
---------
336 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.03.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc Writ Petition No. 44864 of 2005

M/s
Pradhan
Prabandhak,
Kishan
Sahkari
Chini
Mill
through
General
Manager

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

Counsel for the Petitioner:
Sri S.K. Singh
Sri A.K. Mishra
Sri V.B. Mishra

Counsel for the Respondents:
Sri Anoop Trivedi
Sri Vinod Upadhyay
Sri M.K. Singh
C.S.C.

Constitution
of
India,
Article
226Employee of Cooperative Society Sugar
Mill-reference under Section 4 (b) of
Industrial Dispute Act?-whether properheld-'Non' provision of Industrial dispute
either
state
or
central
Acts
are
applicable-except
under
provision
of
1965 of Act-order of reference-Quashed.

Held: para 12

So far as objection that issue with
respect to non application of industrial
Dispute Act was not raised before the
Labour Court is concerned, the award
itself shows that the aforesaid objection
was raised but has been decided by
Labour Court against the petitioneremployer. The said view is contrary to
Apex Court's decision in Ghaziabad Zila
Sahkari Bank (supra) and, therefore, the
issue decided by Labour Court against
the
petitioner-employer
has
to
be
answered in its favour and if that is so,
the award itself cease to be a valid one.
The Labour Court, therefore, has no
jurisdiction in the matter.
Case law discussed:
2007 (11) SCC 756; 2011 (131) FLR 391;
Special Appeal No. 1906 of 2008 (Brij Bhushan
Singh and another Vs. State of U.P. and
others)

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

1. Heard Sri V.B. Mishra, Advocate,
for petitioner and Sri Vinod Upadhyay,
Advocate, for contesting respondent no.
4-workman.

2. Writ petition is directed against
the award of Labour Court dated
28.9.2004 in Adjudication Case No. 27 of
2002. The workman-respondent no. 4
raised an industrial dispute regarding his
confirmation from crushing session 199798. The State Government in exercise of
power under Section 4-K of U.P.
Industrial Disputes Act, 1947 (hereinafter
referred to as "U.P. Act, 1947") vide
notification
dated
9.4.2002
made
following reference:

^^D;k lsok;kstdksa ds }kjk vius deZpkjh Jh
fodze flag iq= Jh fou;ik fyfid dks isjkbZ l=
1997&98 ls LFkk;h ?kksf"kr djrs gq, in ds vuq:i
osrueku u fn;k tkuk mfpr rFkk@ vFkok oS?kkfud
gSA ;fn gka rks lEcfU/kr Jfed fdl {kfriwfrZ
1⁄4fjyhQ1⁄2@ fgrykHk vuqrks"k vkfn ikus dk vf/kdkjh
gS rFkk vU; fdl fooj.k lfgr\^^

3. By impugned award dated
28.9.2004 the Labour Court has answered
reference in favour of workman.

4. Learned Counsel for petitioner
submitted that petitioner is a Co-operative
Society Sugar Mill and is governed by the
provisions of U.P. Cooperative Societies
Act, 1965 (hereinafter referred to as "Act,
1965")
therefore
the
provisions
of
Industrial Disputes Act are not applicable