# Mohan Singh v. State of U.P. and others

- **Citation:** (2006) 2 ILRA 824
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-09-12
- **Case number:** Civil Misc. Writ Petition No. 9798 of 1986
- **Bench:** Dr. B.S. Chauhan, Shishir Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohan-singh-v-state-of-u-p-and-others-40608
- **Pages:** 9

## Headnote

Constitution of India, Art. 226-Practice &
Procedure-Maxim
"Actus
Curiae
neminem
gravabit
"explainedappointment on adhoc basis-for specific
period-after expiretry of specified period
term not extended by subsequent orderGovt. refused for creation of post-both
orders stayed by writ court-petitioner
continued on the basis of interim orderfinally writ petition dismissed being
devoid of merit-held-court is under
obligation to under the wrong which
caused to other party by such interim
order.

Held: Para 18

No litigant can derive any benefit from
mere pendency of case in a Court of Law,
as the interim order always merges in
the final order to be passed in the case
and if the writ petition is ultimately
dismissed, the interim order stands
nullified automatically. A party cannot be
allowed to take any benefit of his own
wrongs by getting interim order and
thereafter blame the Court. The fact that
the writ is found, ultimately, devoid of
any merit, shows that a frivolous writ
petition had been filed. The maxim
"Actus Curiae neminem gravabit", which
means that the act of the Court shall
prejudice no-one, becomes applicable in
such a case. In such a situation the Court
is under an obligation to undo the wrong
done to a party by the act of the Court.
Thus,
any
undeserved
or
unfair
advantage gained by a party invoking
the jurisdiction of the Court must be
neutralised, as institution of litigation
cannot be permitted to confer any
advantage on a suitor from delayed
action by the act of the Court.

Constitution
of
India-Art.-226-Service
law-Regularisation-appointment
of
petitioner for a period of one year-after
expiry of such period-petitioner has no
right
to
continue-continuation
of
petitioner on the basis of interim orderabolition
or
creation
of
the
postexclusively
within
the
domain
of
executive-court has no jurisdiction to
interfere-continuation on the basis of
wrong interim order-can not be ground
for regularisation.

Held: Para 13,14 & 23

The post temporarily created for only
one year stood abolished. Petitioner filed
Writ Petition No. 9798 of 1986 and while
entertaining the same this Court vide
order
dated
23.06.1986
stayed
the
operation of the orders dated 3.5.1986
and 12.05.1986, by which the post was
abolished and petitioner was removed
from the said post. In fact, petitioner had
no concern, no right and no locus to
approach any Court of law for any relief,
whatsoever after expiry of the tenure of
his posting.

It is settled legal proposition that
creation and abolition of posts is a policy
matter and lies exclusively within the
domain of the Executive. The Court has
no jurisdiction to interfere in such
matters.

In view of the above, we are of the
considered opinion that as the petitioner
had been working under the interim
order of the Court and the writ petition

## Text

824 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
termination is simplicier or punitive has
ultimately to be decided having due
regard to the facts and circumstances of
each case. Many a times the distinction
between the foundation and motive in
relation to an order of termination either
is thin or overlapping. ·It may be difficult
either to categorise or classify strictly
orders of termination simpliciter falling in
one or the other category, based on
misconduct as foundation for passing the
order of termination simpliciter of on
motive on the ground of unsuitability to
continue in service".

10. Applying the above test in the
present case it is clear from the own
averments of the respondents in· the
counter affidavit that the termination
order was proceeded by enquiry in which
charge. of embezzlement was established
against the petitioner. Petitioner in the
Writ petition has categorically stated that
no opportunity or show cause was given
to the petitioner before passing the order
of termination. Thus the finding of guilt
of the petitioner has been recorded in an
ex parte enquiry and the finding of
embezzlement is the foundation of the
order of termination. The categorical
assertions have been made in the counter
affidavit that the services have been
terminated after finding the petitioner
guilty of embezzlement. The order of
terminating the services of the petitioner
is not a simpliciter termination but has
been
founded
on
the
charge
of
misconduct. Taking into entire facts and
circumstances of the present case as
brought on record it is clear beyond any
shadow of doubt that the termination
order was passed on, finding of guilt of
embezzlement which is the foundation of
the order. The termination order is not
termination simpliciter but is punitive in
nature.

11. In view of foregoing discussion
the impugned order dated 10.11.1993
cannot be sustained and is hereby
quashed. The petitioner shall be deemed
to continue in service and shall be
reinstated by the respondents within a
period of one months from the date of
production of a certified copy of this
order. However, since the petitioner was
appointed on commission basis there is no
occasion to direct for payment of any
arrears of salary. Other benefits of service
as permissible including the continuity of
service shall be admissible to the
petitioner in accordance with relevant
rules, government orders issued by the
State Government from time to time.

The writ petition is allowed with the
aforesaid directions. Parties shall bear
their own costs.

Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.09.2005

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No. 9798 of 1986

Mohan Singh Bais

...Petitioner
Versus
State of U.P. and others ...Respondents
AND
Civil Misc. Writ Petition No. 15100 of 1999

Counsel for the Petitioner:
Sri V.C. Misra
Sri C.P. Tripathi
Smt. Suniti Vandana Misra
Sri Shailesh Verma
2 All] Mohan Singh V. State of U.P. and others
825
Counsel for the Respondents:
Sri M.C. Tripathi
S.C.

Constitution of India, Art. 226-Practice &
Procedure-Maxim
"Actus
Curiae
neminem
gravabit
"explainedappointment on adhoc basis-for specific
period-after expiretry of specified period
term not extended by subsequent orderGovt. refused for creation of post-both
orders stayed by writ court-petitioner
continued on the basis of interim orderfinally writ petition dismissed being
devoid of merit-held-court is under
obligation to under the wrong which
caused to other party by such interim
order.

Held: Para 18

No litigant can derive any benefit from
mere pendency of case in a Court of Law,
as the interim order always merges in
the final order to be passed in the case
and if the writ petition is ultimately
dismissed, the interim order stands
nullified automatically. A party cannot be
allowed to take any benefit of his own
wrongs by getting interim order and
thereafter blame the Court. The fact that
the writ is found, ultimately, devoid of
any merit, shows that a frivolous writ
petition had been filed. The maxim
"Actus Curiae neminem gravabit", which
means that the act of the Court shall
prejudice no-one, becomes applicable in
such a case. In such a situation the Court
is under an obligation to undo the wrong
done to a party by the act of the Court.
Thus,
any
undeserved
or
unfair
advantage gained by a party invoking
the jurisdiction of the Court must be
neutralised, as institution of litigation
cannot be permitted to confer any
advantage on a suitor from delayed
action by the act of the Court.

Constitution
of
India-Art.-226-Service
law-Regularisation-appointment
of
petitioner for a period of one year-after
expiry of such period-petitioner has no
right
to
continue-continuation
of
petitioner on the basis of interim orderabolition
or
creation
of
the
postexclusively
within
the
domain
of
executive-court has no jurisdiction to
interfere-continuation on the basis of
wrong interim order-can not be ground
for regularisation.

Held: Para 13,14 & 23

The post temporarily created for only
one year stood abolished. Petitioner filed
Writ Petition No. 9798 of 1986 and while
entertaining the same this Court vide
order
dated
23.06.1986
stayed
the
operation of the orders dated 3.5.1986
and 12.05.1986, by which the post was
abolished and petitioner was removed
from the said post. In fact, petitioner had
no concern, no right and no locus to
approach any Court of law for any relief,
whatsoever after expiry of the tenure of
his posting.

It is settled legal proposition that
creation and abolition of posts is a policy
matter and lies exclusively within the
domain of the Executive. The Court has
no jurisdiction to interfere in such
matters.

In view of the above, we are of the
considered opinion that as the petitioner
had been working under the interim
order of the Court and the writ petition
in which he got the interim order is
devoid of any merit as the creation and
abolition of the post is within the
exclusive domain of the Executive and
the Courts cannot interfere in such
matters, the petitioner cannot take the
benefit of working under the interim
order of the Court.
Case law discussed:
AIR 1980 SC-656, AIR 1992 SC-1988, 1995 (2)
Supp. SCC-726, AIR 1997 SC-993, 1998 (3)
SCC-376, 1997 (5) SCC-772, AIR 1997 SC1896, AIR 1999 SC-1198, 1998 (8) SCC-529,
2003 (8) SCC-648, 2004 (2) SCC-783
826 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. Both these writ petitions have
been filed by Shri Mohan Singh Bais.
Writ Petition No.9798 of 1998 has been
filed for quashing the orders dated
03.05.1986 and 12.05.1986, by which the
post of Sports Officer had been abolished
and the petitioner had been reverted to his
original post and Writ Petition No.15100
of 1999 has been filed for a direction
upon the respondents to regularise the
services of the petitioner on the post of
Sports Officer.

2. The facts and circumstances
giving rise to this case are that the
petitioner had been appointed as a
Routine Grade Clerk-II in 1968 in Nagar
Mahapalika, Kanpur. He was asked to
look after the sports by the respondentNagar
Mahapalika.
On
the
recommendation of the Chief Minister of
Uttar Pradesh, a post of Sports Officer
was sanctioned temporarily for a period of
one year and the petitioner was appointed
on the said post on ad hoc basis with an
understanding that his ad hoc appointment
was for a period of one year or till the
regular selected candidate was made
available for the post, whichever was
earlier. The petitioner claims to have been
given
extension
even
subsequently,
though the tenure of the post was not
extended.
The
last
extension
was,
according
to
the
petitioner,
upto
12.30.1987.
As
the
post
was
not
sanctioned rather a specific order was
passed by the State authorities abolishing
the said post vide order dated 03.05.1986,
the petitioner was reverted to his original
post vide order dated 12.05.1986. Being
aggrieved, petitioner filed Writ Petition
No.9798 of 1986 and this Court, vide
order
dated
23.06.1986,
stayed the
operation
of
both
the
orders,
i.e.
03.05.1986 and 12.05.1986. During the
pendency of the said writ petition, the
Writ Petition No.15100 of 1999 was filed
seeking the relief of regularisation on the
post, as he had been working on the said
post since long.

3. Shri Shailesh Verma, learned
counsel for the petitioner has submitted
that there could be no justification for
abolishing the said post and reverting the
petitioner, as the post was found to be
necessary in the public interest. As the
petitioner had been working under the
interim order of this Court since long, he
is entitled for regularisation on the post of
Sports Officer and there can be no
justification for reverting him at the verge
of his retirement, therefore, both the
petitions deserve to be allowed.

4. On the contrary, it has been
submitted
by
the
learned
Standing
Counsel that the post had been sanctioned
only for a period of one year. His
appointment was maximum for a period
one year which came to an end after
efflux of tenure of his posting. Therefore,
the question of his extension could not
arise, as the post was created for a limited
period. Even the petitioner was working
under interim order of this Court, it will
not confer any right to the petitioner.
Creation and abolition of the post falls
within the exclusive domain of the
Executive and the Courts and Tribunals
have to keep their hands off in such
matters, as it involves the financial burden
and being policy matter, such matters are
outside the scope of the judicial review by
the Courts. Thus, the petitions are liable
to be dismissed.
2 All] Mohan Singh V. State of U.P. and others
827
5. We have considered the rival
submissions made by learned counsel for
the parties and perused the record.

It is evident from the record that the
petitioner had been appointed as a
Routine Grade Clerk-II. He was asked to
look after the sports. Subsequently, as the
post had been sanctioned temporarily for
a period of one year, he was appointed
with
a
clear
stipulation
that
his
appointment was for a period of one year
or till the regular selected candidate was
made available by the State whichever
was earlier. There is nothing on record to
show that the tenure of post so created has
been extended beyond the period of one
year, therefore, in such a fact situation,
the question of extension of services of
the petitioner could not arise. Even
otherwise,
the
petitioner
had
been
appointed on the said post without
advertising the vacancy or calling the
names from Employment Exchange. The
services of the petitioner were not
governed by any Statutory Rules rather he
was bound by the terms and conditions
incorporated in his appointment letter.
Any appointment so made is invalid as it
violates the fundamental rights of other
eligible candidates who could have
applied for the post.

6. It is settled legal proposition that
appointment to any public post is to be
made by advertising the vacancy and any
appointment made without doing so
violates the mandates of Articles 14 and
16 of the Constitution of India as it
deprives the candidates who are eligible
for the post, from being considered.

7.

In
Delhi
Development
Horticulture Employees' Union Vs. Delhi
Administration, Delhi & Ors., AIR 1992
SC 789, the Hon'ble Apex Court held that
calling the names from Employment
Exchange may curb to certain extent the
menace of nepotism and corruption in
public employment.

8. In State of Haryana Vs. Piara
Singh, AIR 1992 SC 2130, the Hon'ble
Supreme Court held as under:-

"Thirdly, even where an ad hoc or
temporary employment is necessitated on
account
of
the
exigencies
of
administration, he should ordinarily be
drawn from the employment exchange
unless it cannot brook delay in which case
the pressing cause must be stated on the
file. If no candidate is available or is not
sponsored by the employment exchange,
some appropriate method consistent
with the requirements of Article 16
should be followed. In other words there
must be a notice published in the
appropriate
manner
calling
for
applications and all those who apply in
response thereto should be considered
fairly."

9. Any appointment made on
temporary or ad hoc basis in violation of
the mandate of Articles 14 and 16 of the
Constitution of India is not permissible,
and thus void as the appointment is to be
given after considering the suitability and
merit of all the eligible persons who apply
in pursuance of the advertisement. In
Excise
Superintendent
Malkapatnam,
Krishna
District,
A.P.
Vs.
K.B.N.
Visweshwara Rao & Ors., (1996) 6 SCC
216, the larger Bench of the Hon'ble
Supreme Court reconsidered its earlier
judgment in Union of India & Ors. Vs. N.
Hargopal & Ors., AIR 1987 SC 1227,
wherein it had been held that insistence of
requirement
through
employment
828 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
exchanges advances rather than restricts
the rights guaranteed by Articles 14 and
16 of the Constitution, and held that any
appointment even on temporary or ad hoc
basis without inviting application is in
violation of the provisions of Articles 14
and 16 of the Constitution and even if the
names of candidates are requisitioned
from Employment Exchange, in addition
thereto it is mandatory on the part of the
employer to invite applications from all
eligible candidates from open market as
merely calling the names from the
Employment Exchange does not meet the
requirement of the said Articles of the
Constitution.
Same
view
has
been
reiterated in Arun Tewari & Ors. Vs. Zila
Manaswavi Shikshak Sangh & Ors., AIR
1998 SC 331; Kishore K. Pati Vs. District
Inspector of Schools, Midnapur & Ors.,
(2000) 9 SCC 405 and Subhas Chand
Dhrupta & Anr. Vs. State of H.P. & Ors.,
(2000) 10 SCC 82. Therefore, it is settled
legal proposition that no person can be
appointed even on temporary or ad hoc
basis without inviting applications from
all eligible candidates and if any such
appointment
has
been
made
or
appointment has been offered merely
inviting names from the Employment
Exchange
that
will
not
meet
the
requirement of Articles 14 and 16 of the
Constitution.

10. In the instant case, there is no
pleading to show that at the time of initial
appointment of the petitioner on a tenure
post, applications had been invited for the
post
nor
the
names
have
been
requisitioned
from
the
Employment
Exchange. Petitioner had been appointed
vide order dated 13.11.1984 on ad hoc
basis for a period of one year or till the
regular selected candidates were made
available by the State Government,
whichever was earlier. As the petitioner's
service had been under no Statutory
Rules, the service conditions of the
petitioner were governed by the terms and
conditions
incorporated
in
his
appointment letter. There were crystal
clear
stipulations
that
under
no
circumstances the petitioner shall be in
service after 12.09.1985.

11. There was no occasion for the
authority to terminate his services or pass
a termination order as his appointment
came to an end automatically by efflux of
time in view of the terms and conditions
incorporated in his appointment letter
after one year of his appointment. (Vide
State of Punjab & Anr. Vs. Surinder
Kumar & Ors., AIR 1992 SC 1593;
Director, Institution of Management,
Development, U.P. Vs. Smt. Pushpa
Srivastava, AIR 1992 SC 2070; and State
of U.P. & Anr. Vs. Dr. S.K. Sinha & Ors.,
AIR 1995 SC 768).

12. In view of the aforesaid settled
legal
proposition,
the
question
of
continuation of the petitioner in service
after 12.09.1985 could not arise as this
was the last date on which the petitioner
would be deemed to have automatically
been removed from service. There could
be no occasion to pass an order of
extension of his service after 12.09.1985,
as the post had been sanctioned only for
one year.

13. The post temporarily created for
only one year stood abolished. Petitioner
filed Writ Petition No. 9798 of 1986 and
while entertaining the same this Court
vide order dated 23.06.1986 stayed the
operation of the orders dated 3.5.1986 and
12.05.1986, by which the post was
abolished and petitioner was removed
2 All] Mohan Singh V. State of U.P. and others
829
from the said post. In fact, petitioner had
no concern, no right and no locus to
approach any Court of law for any relief,
whatsoever after expiry of the tenure of
his posting.

14. It is settled legal proposition that
creation and abolition of posts is a policy
matter and lies exclusively within the
domain of the Executive. The Court has
no jurisdiction to interfere in such
matters.

15. A Constitution Bench of the
Hon'ble Supreme Court in N. Ramanatha
Pillai Vs. State of Kerala & Anr., AIR
1973 SC 2641, has held as under:-

"The discharge of a civil servant on
account of abolition of the post held by
him is not an action which is proposed to
be taken as a personal penalty but it is an
action concerning the policy of the State
whether a permanent post should continue
or not......the abolition of post may have
consequence of the termination of service
of
a
government
servant.
Such
termination is not dismissal or removal
within the meaning of Article 311 of the
Constitution......The abolition of post is
an executive policy decision. Whether
after abolition of the post the government
servant who was holding the post would
or could be offered any employment
under the State, would therefore be a
matter
of
policy
decision
of
the
government because the abolition of the
post does to confer on the person holding
the abolished post any right to hold the
post."(Emphasis added).

16. In K. Rajendran & Ors. Vs. State
of Tamil Nadu & Ors., AIR 1982 SC
1107, the Hon'ble Supreme Court held as
under:-
"In modern administration it is
necessary to recognise the existence of the
powers with the legislature or the
executive to create or abolish post in the
civil service or State. The volume of
administrative work, the measures of
economy and the need for stream-line of
the administration to make it more
efficient
may
induce
the
State
Government to make alteration in the
staffing pattern of the civil services
necessitating
either
the
increase
or
decrease in the number of posts. This
power is inherent in the very concept of
governmental administration. To deny
that power to the government is to strike
at the very right of the proper public
administration. The power to abolish a
post which may result in the holder
thereof ceasing to a government servant
has got to be recognised".

17. In Union of India & Ors. Vs.
Tejram Parashramji Bombhate & Ors.,
AIR 1992 SC 570, the Hon'ble Supreme
Court held that "direction to create or
abolish a post cannot be issued by the
Court being a policy matter involving
financial burden. The Courts cannot
compel the State to change its policy
involving expenditure."

Similarly, in Piara Singh (supra), the
Supreme Court held as under:-

"Ordinarily speaking, the creation
and
abolition
of
a
post
is
the
prerogative of the Executive. It is the
Executive against that lays down the
conditions of service subject, of course, to
a
law
made
by
the
appropriate
legislature.....The Court comes into the
picture only to ensure observance of
fundamental rights, statutory provisions,
Rules and other instructions, if any,
830 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
governing the conditions of service. The
main concern of the Court in such matters
is to ensure the rules of law and to see that
the executive acts fairly and gives a fair
deal to its employees consistent with the
requirements of Articles 14 and 16."
(Emphasis added)

In view of the above, as the
petitioner had no right to hold the post
after 12/9/1985 and to maintain the Writ
Petition No. 9798 of 1986, he cannot be
granted any relief, whatsoever.

The petitioner claims the benefit of
regularisation, having worked under the
interim
order
of
this
Court
dated
23.06.1986.

18. No litigant can derive any
benefit from mere pendency of case in a
Court of Law, as the interim order always
merges in the final order to be passed in
the case and if the writ petition is
ultimately dismissed, the interim order
stands nullified automatically. A party
cannot be allowed to take any benefit of
his own wrongs by getting interim order
and thereafter blame the Court. The fact
that the writ is found, ultimately, devoid
of any merit, shows that a frivolous writ
petition had been filed. The maxim
"Actus Curiae neminem gravabit", which
means that the act of the Court shall
prejudice no-one, becomes applicable in
such a case. In such a situation the Court
is under an obligation to undo the wrong
done to a party by the act of the Court.
Thus, any undeserved or unfair advantage
gained by a party invoking the jurisdiction
of the Court must be neutralised, as
institution
of
litigation
cannot
be
permitted to confer any advantage on a
suitor from delayed action by the act of
the Court. (Vide Grindlays Bank Ltd. Vs.
Income Tax Officer, Calcutta & ors., AIR
1980 SC 656; Ram Krishna Verma Vs.
State of Uttar Pradesh & Ors., AIR 1992
SC 1888; Dr. A.R. Sircar Vs. State of
Uttar Pradesh & ors., 1993 Suppl. (2)
SCC 734; Shiv Shanker & Ors. Vs. Board
of Directors, Uttar Pradesh State Road
Transport Corporation & anr., 1995 Suppl
(2) SCC 726; State of Madhya Pradesh
Vs. M/s. M.V. Vyavsava & Co., AIR
1997
SC
993; The
Committee of
Management, Arya Inter College Vs. Sree
Kumar Tiwary, AIR 1997 SC 3071; and
GTC Industries Ltd. Vs. Union of India &
Ors., (1998) 3 SCC 376).

19. In Kanoria Chemicals and
Industries Ltd. Vs. U.P. State Electricity
Board & Ors., (1997) 5 SCC 772, the
Hon'ble
Apex
Court
approved
and
followed its earlier judgment in Shree
Chamundi Mopeds Ltd. Vs. Church of
South India Trust Association, (1992) 3
SCC 1, and observed as under:-

"It is equally well settled that an
order of stay granted pending disposal of
a writ petition/suit or other proceeding,
comes to an end with the dismissal of the
substantive proceeding and that it is the
duty of the court in such a case to put the
parties in the same position they would
have been but for the interim orders of the
Court."

20. The same view has been taken
by the Hon'ble Supreme Court in the case
of N. Mohanan Vs. State of Kerala &
Ors., AIR 1997 SC 1896; and Bileshwar
Khan Udyog Khedut Shahakari Mandali
Ltd. Vs. Union of India & Anr., AIR 1999
SC 1198 wherein it has been held that the
appointment/continuation in service by
interim order, does not create any legal
right in favour of the appointee. In State
2 All] Mohan Singh V. State of U.P. and others
831
of U.P. & Ors. Vs. Raj Karan Singh,
(1998) 8 SCC 529, the Hon'ble Apex
Court has categorically held that interim
order cannot disturb the position in law
and if a person is in service by virtue of
the interim order of the Court, he cannot
agitate the issue that his continuation in
service in such a condition has improved
his claim to regularisation.

21. In South Eastern Coalfields Ltd.
Vs. State of M.P. & Ors., (2003) 8 SCC
648, Hon'ble Apex Court observed as
under:-

".......There is nothing wrong in the
parties demanding being placed in the
same position in which they would have
been had the court not intervened by its
interim order when at the end of the
proceedings the court pronounces its
judicial verdict which does not match
with and countenance its own interim
verdict.
Whenever
called
upon
to
adjudicate, the court would act in
conjunction with what is real and
substantial justice. The injury, if any,
caused by the act of the court shall be
undone and the gain which the party
would
have
earned
unless
it
was
interdicted by the order of the court would
be restored to or conferred on the party by
suitably commanding the party liable to
do so. Any opinion to the contrary would
lead
to
unjust
if
not
disastrous
consequences. Litigation may turn into a
fruitful industry. Though litigation is not
gambling yet there is an element of
chance in every litigation. Unscrupulous
litigants may feel encouraged to approach
the courts, persuading the court to pass
interlocutory orders favourable to them by
making out a prima facie case when the
issues are yet to be heard and determined
on merits and if the concept of restitution
is excluded from application to interim
orders, then the litigant would stand to
gain by swallowing the benefits yielding
out of the interim order even though the
battle has been lost at the end. This cannot
be countenanced......"

22. Similar view has been reiterated
in Karnataka Rare Earth & Anr. Vs.
Senior Geologist, Department of Mines &
Geology & Anr., (2004) 2 SCC 783, in
which the Hon'ble Apex Court observed
as under:-

"......When on account of an act of
the party, persuading the court to pass an
order, which at the end is held as not
sustainable, has resulted in one party
gaining advantage which it would not
have otherwise earned, or the other party
has suffered an impoverishment which it
would not have suffered but for the order
of the court and the act of such party, then
the successful party finally held entitled to
a relief, assessable in terms of money at
the end of the litigation, is entitled to be
compensated in the same manner in which
the parties would have been if the interim
order of the court would not have been
passed. The successful party can demand:
(a) the delivery of benefit earned by the
opposite party under the interim order of
the court, or (b) to make restitution for
what it has lost."

Thus, it is evident that a litigant
cannot take benefit of his own mistake of
getting the interim order in a case having
no merit.

23. In view of the above, we are of
the considered opinion that as the
petitioner had been working under the
interim order of the Court and the writ
petition in which he got the interim order
832 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
is devoid of any merit as the creation and
abolition of the post is within the
exclusive domain of the Executive and the
Courts cannot interfere in such matters,
the petitioner cannot take the benefit of
working under the interim order of the
Court.

Both the petitions are devoid of any
merit and are accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.11.2005

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 42344 of 2004

Ram Das

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

Counsel for the Petitioner:
Sri Manoj Mishra

Counsel for the Respondents:
Sri Prem Chandra
S.C.

Constitution
of
India,
Art.
21Termination
order-petitioner
was
appointed on compassionate groundafter 14 years of service termination
order passed without affording any
opportunity without giving the copy of
enquiry report-petitioner was not even in
service prior to death of his father-for
interpolation made by unknown person
is service record of the father of
petitioner held out and out illegal,
arbitrary-a right of livelihood can not be
taken away.

Held: Para 7

In the aforesaid circumstances, the
petitioner can not be penalized for any
alleged
interpolation
in
the
service
record by some unknown person. What is
the material is the fact that the father of
the petitioner died in harness. There is
no illegality in the appointment of the
petitioner
who
has
worked
in
the
department for last about 14 years when
his
services
have
suddenly
been
terminated
without
affording
an
opportunity. The impugned order of
termination is therefore out and out,
illegal, arbitrary and without reasonable
basis. A right of livelihood has accrued to
the petitioner as enshrined under Article
21 of the Constitution, which can not be
taken away without proper opportunity
of
hearing
even
otherwise
in
the
circumstances of this case.

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard counsel for the parties and
perused the record.

The father of the petitioner was an
employee of Nagar Palika Parishad,
Jalabad, Shahjahanpur. He died in harness
on 27.7.89. The petitioner was appointed
on compassionate ground on the post of
Safai Karmchari in Nagar Palika Parishad,
Jalabad, Shahjahanpur and continued in
service till 31.8.2004. On that date, the
respondent no.3, Executive Officer, Nagar
Palika Parishad, Jalabad, Shahjahanpur
terminated the services of the petitioner
without any opportunity of hearing interalia, that the father of the petitioner had
completed 60 years of age on 30.6.1988,
hence he could not be deemed to have
been in service as such the appointment
given to the petitioner on compassionate
ground was illegal.

2. The counsel for the respondents
has relied upon the averments made in the
counter
affidavit
and
submits
that
according to records the father of the
petitioner had not died in harness. He