# Mohd. Ajaz v. Managing Director & Ors. 1622 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2019) 2 ILRA 1621
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-22
- **Case number:** Service Single No. 7027 of 1996
- **Bench:** Rakesh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-ajaz-v-managing-director-ors-1622-indian-law-reports-allahabad-series-44297
- **Pages:** 5

## Headnote

Law
-
challenging
oral
termination - petitioner appointed as a
driver-cum-peon in temporary vacancy -
subsequently contractually appointed on
said post for three months - appointment
came to an end but allowed to continue
beyond the prescribed period - terminated
by efflux of time
The
continuance
of
a
person
wrongly
appointed on the post does not create any
legal right in his favour. (Para 10)

Writ Petition dismissed (E-10)

Cases cited:-

## Text

2 All. Mohd. Ajaz Vs Managing Director & Ors.
1621
review
under
Article
226
of
the
Constitution of India, in reviewing its
own orders, every Court including High
Court inheres plenary jurisdiction, to
prevent miscarriage of justice or to correct
grave and palpable errors committed by it.

28. Further, the review lies only on
the grounds mentioned in Order 47, Rule
1 read with Section 141 CPC. The party
must satisfy the Court that the matter or
evidence discovered by it at a subsequent
stage could not be discovered or produced
at the initial stage though it had acted with
due diligence. A party filing a review
application on the ground of any other "
sufficient reason" must satisfy that the
said reason is analogous to the conditions
mentioned in the said provision of C.P.C.

29. Thus, in view of the abovesaid facts,
review can be allowed only on (1) discovery
of new and important matter of evidence
which, after exercise of due diligence, was not
within the knowledge of the person seeking
review, or could not be produced by him at
the time when the order was made, or (2)
when some mistake or error on the face of
record is found, or (3) on any analogous
ground. But review is not permissible on the
ground that the decision was erroneous on
merits as the same would be the province of
an Appellate Court.

30. In View of the above discussion
, the law of review can be summarized
that it lies only on the grounds mentioned
in Order 47, Rule 1 CPC . The party must
satisfy the Court that the matter or
evidence discovered by it at a subsequent
stage could not be discovered or produced
at the initial stage though it had acted with
due diligence. A party filing a review
application on the ground of any other'
sufficient reason' must satisfy that the said
reason is analogous to the conditions
mentioned in Order 47, Rule 1 CPC.
Under the garb of review, a party cannot
be permitted to re-open the case and to
gain a full-fledged inning for possible for
the Court to take a view contrary to what
had been taken earlier. Review lies only
when there is error apparent on the fact of
the record and that fallibility is by the
over-sight of the Court.

31. Hon'ble Supreme Court in the case
of Zahira Habibullah Sheikh Vs. State of
Gujarat, (2004) 5 SCC 353, after placing
reliance on its earlier judgments i.e. P.N.
Eswara Iyer etc. Vs. Registrar Supreme
Court of India, (1980) 4 SCC 680;
Sutherdraraja Vs. State, (1999) 9 SCC 323;
Ramdeo Chauhan Vs. State of Assam, AIR
2001 SC 2231; and Devender Pal Singh Vs.
State of NCT of Delhi, AIR 2003 SC 3365;
observed that review applications "are not to
be filed for the pleasure of the parties or even
as a device for ventilating remorselessness,
but ought to be resorted to with a great sense
of responsibility as well."

32. For the foregoing reasons, the
review application lacks merit. Hence,
dismissed with no order as to costs.
----------

(2019)10ILR A 1621

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.07.2016
BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.

Service Single No. 7027 of 1996

Mohd. Ajaz ...Petitioner
Versus
Managing Director & Ors. ...Respondents
1622 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Sri Ghaus Beg, Sri Vishal Chaudhary.

Counsel for the Respondents:
Sri S.K. Kaliya.

A.
Service
Law
-
challenging
oral
termination - petitioner appointed as a
driver-cum-peon in temporary vacancy -
subsequently contractually appointed on
said post for three months - appointment
came to an end but allowed to continue
beyond the prescribed period - terminated
by efflux of time
The
continuance
of
a
person
wrongly
appointed on the post does not create any
legal right in his favour. (Para 10)

Writ Petition dismissed (E-10)

Cases cited:-

1.
Director,
Institute
of
Management
Development U.P. Vs Pushpa Srivastava (Smt.)
(1992) 4 SCC 33

2. M.S. Patil (Dr.) Vs Gulbarga University
(2010) 10 SCC 63

3. State of Orissa & anr Vs Mamata Mohanty
(2011) 3 SCC 436

4. Secretary, St of Kar & ors Vs Uma Devi &
ors (2006) 4 SCC 1

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

1. The petitioner by means of the
present writ petition under Article 226 of the
Constitution of India, has challenged the
alleged oral termination of his service by the
respondents. The petitioner has further
prayed for a direction to the respondents to
allow him to continue on the post of drivercum-peon and to pay him salary regularly.

2.

The
Small
Industries
Development Bank of India (for short ''the
Bank')
is
a
development
financial
institution in India headquartered in
Lucknow and having its offices all over
the country. It was established in April
1990 through an Act of the Indian
Parliament.

3. The petitioner was first appointed
in the Bank on 27.06.1995 on daily wage
basis as a driver-cum-peon in a temporary
vacancy by the Manager of the Bank at
Lucknow,
the
respondent
no.
3.
Thereafter, by an order dated 13.10.1995,
the petitioner was appointed on the said
post on a consolidated fixed salary of Rs.
3000/- per month on contract basis for a
period of three months. The petitioner
joined his duties accepting the term of his
appointment letter. By an order dated
03.01.1996, the appointment of the
petitioner was extended for a further
period of three months on the same terms
and conditions and by letter dated
12.04.1996, the appointment of the
petitioner was further extended up to
31.05.1996. Although the appointment
came to an end on 31.05.1996, by efflux
of time, the petitioner was allowed to
continue beyond the prescribed period on
daily wage basis. It is alleged that on
4.10.1996, the petitioner was orally
informed by the respondent no. 3 that his
services were no longer required and
accordingly, the petitioner was not
permitted to work thereafter.

4. Sri Ghaus Beg, learned counsel
for the petitioner has submitted that the
work and conduct of the petitioner was
satisfactory and there was no complaint
against the petitioner and as such there
was no reason why the services of the
petitioner were not extended. The counsel
contended
that
decision
of
the
respondents in not renewing the contract
2 All. Mohd. Ajaz Vs Managing Director & Ors.
1623
of the petitioner was arbitrary and
unjustified.

5. Per contra, Shri S.K. Kalia, Senior
Advocate,
has
submitted
that
the
engagement of the petitioner was purely
on contract basis for a specific period on
the terms and conditions mentioned in the
said letter and after the term of the service
of the petitioner came to an end the
petitioner has no right to continue on the
post in question. The averments made on
behalf of the petitioner that his work and
conduct was satisfactory has also been
denied.

6. Heard the learned counsel for the
parties and perused the record.

7. The only question that arises for
consideration in the instant case that is ''as
to whether the petitioner can claim as a
matter of right to continue on the post in
question in spite of the fact that his term
of appointment has come to an end by
efflux of time' is no more res integra.

8.

Relevant
portion
of
the
appointment order dated 13.10.1995 reads
as under:-

"vkidks fuEufyf[kr fuca/kuksa vkSj
'krksZa ij Makboj&lg&pijklh dk in izLrkfor
djus dk fu.kZ; fd;k x;k gS&

1- vkidks :0 3000@& izfrekg dk
fu;r osru fn;k tk,xkA

2- vkidh fu;qfDRk] vkidh fu;qfDRk
frfFk vFkkZr~ vDVwcj 04] 1995 ls tuojh 03]
1996 rd lafonk vk/kkj ij gksxhA

3- cSad es vkidks fu;kstu] mDRk
vof/k dh lekfIr] vFkkZr~ tuojh 03] 1996 dks
dk;Zdky dh lekfIr ij Lor% lekIr gks
tk,xkA ;g uksV fd;k tk, fd cSad ij bl
ckr dh dksbZ ftEesnkjh ugha gksxh fd bl laca/k
esa og lsok lekfIr laca/kh dksbZ vkSipkfjd lwpuk
tkjh djs vFkok uksfVl nsA lsok lafonk dh
lekfIr ij dksbZ {kfriwfrZ ns; ugha gksxhA

* * *

8- fdlh Hkh ifjfLFkfr esa] bl
fu;kstu lafonk ds QyLo:i cSad esa fu;fer
fu;kstu vFkok lsok lafonk dh vof/k esa o`f) ds
laca/k esa vkidk dksbZ nkok ugha curk gSA

9- cSad dks tc Hkh vko';drk gksxh]
rc vki cSad esa fu;qfDRk ds lanHkZ esa izklafxd
izR;sd lwpuk cSad esa izLrqr djsaxsA"
 (emphasis supplied)

9. It is well settled where the
appointment is contractual, and such
appointment comes to an end by efflux of
time, the incumbent has no right to
continue on the post in question. {see
Director,
Institute
of
Management
Development U.P. v. Pushpa Srivastava
(Smt.), (1992) 4 SCC 33}.

10. It is equally settled that merely
because the incumbent is allowed to
continue beyond the contractual period, it
does not confer any right upon him to
continue. In M.S. Patil (Dr.) v. Gulbarga
University, (2010) 10 SCC 63, the Apex
Court has held that the concept of adverse
possession of lien on post or holding over
are
not
applicable
in
service
jurisprudence. Therefore, continuation of
a person wrongly appointed on post does
not create any right in his favour. Relying
upon M.S. Patil (supra) in State of Orissa
and another v. Mamata Mohanty, (2011)
3 SCC 436, the Apex Court has held that
the concept of adverse possession of lien
on post or holding over are not applicable
in service jurisprudence. Therefore, the
continuance
of
a
person
wrongly
appointed on post does not create any
right in his favour.

11. Further a Constitution Bench of
the Apex Court in Secretary, State of
1624 INDIAN LAW REPORTS ALLAHABAD SERIES
Karnataka and others v. Uma Devi and
others, (2006) 4 SCC 1, has observed as
under :-

"43. 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.
Similarly, a temporary employee could
not claim to be made permanent on the
expiry of his term of appointment. It has
also to be clarified that merely because a
temporary employee or a casual wage
worker is continued for a time beyond the
term of his appointment, he would not be
entitled to be absorbed in regular service
or made permanent, merely on the
strength of such continuance, if the
original appointment was not made by
following a due process of selection as
envisaged by the relevant rules. It is not
open to the court to prevent regular
recruitment at the instance of temporary
employees whose period of employment
has come to an end or of ad hoc
employees who by the very nature of their
appointment, do not acquire any right.
The High Courts acting under Article 226
of the Constitution, should not ordinarily
issue
directions
for
absorption,
regularisation, or permanent continuance
unless the recruitment itself was made
regularly
and
in
terms
of
the
constitutional scheme."

and then

"45. ... 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 open
eyes. It may be true that he is not in a
position to bargain--not at arm's 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. The
claim acquired by him in the post in
which he is temporarily employed or the
interest in that post cannot be considered
to be of such a magnitude as to enable the
giving up of the procedure established, for
making regular appointments to available
posts in the services of the State. The
2 All. Kamlesh Kumar Verma Vs State of U.P. & Anr.
1625
argument that since one has been working
for some time in the post, it will not be just to
discontinue him, even though he was aware
of the nature of the employment when he first
took it up, is not one that would enable the
jettisoning of the procedure established by
law for public employment and would have
to fail when tested on the touchstone of
constitutionality and equality of opportunity
enshrined in Article 14 of the Constitution."
(emphasis supplied)

12. Admittedly, the petitioner was
appointed
on
contract
basis
on
a
consolidated salary for a fixed term and the
same was extended from time to time on the
same terms and conditions. By efflux of
time the appointment of the petitioner came
to an end on 31.05.1996. In view of the
settled legal position the petitioner has no
right to have his contract renewed and to
continue on the post in question. No
mandamus can be issued to the respondents
to continue the petitioner in service.

13. Moreover, the services of the
petitioner were terminated way back in the
year 1996 and since then he is out of job.
More than 20 years have passed. Even
otherwise, at this distance of time no relief,
whatsoever, can be granted to the petitioner.

14. For the foregoing reasons the
writ petition is devoid of merit and is
accordingly dismissed.

15. No order as to cost.
----------
(2019)10ILR A 1625

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.09.2019
BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.
Service Single No. 6682 of 2019

Kamlesh Kumar Verma ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Deomani Tripathi, Sri Ashok Kumar
Mishra, Sri Girish Chandra Verma.

Counsel for the Respondents:
C.S.C.

A. Service law - appointment denied on
ground of non-disclosure of pending
criminal case - one Shri Dililp Kumar
Jaiswal who is charged with more
serious offence permitted to join - the
Court held that the discretion exercised
by the appointing authority should be
reasonable - the Court permitted to join
the service subject to the final outcome
of the criminal proceedings

Writ Petition allowed (E-10)
Cases Cited:-

1. Avtar Singh Vs U.O.I. & ors (2016) 8 SCC
471

2. Commissioner of Police & ors Vs Sandeep
Kumar (2011) 4 SCC 644

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri G.C. Verma, learned
counsel for the petitioner and learned
State Counsel for the State-respondents.

2. By means of this petition, the
petitioner has assailed the office memo
dated 28.1.2019 passed by the Secretary,
Department of Home (Police), Anubhag9, Lucknow refusing to give appointment
to the petitioner for the reason that the
petitioner has concealed the relevant fact
regarding pending criminal cases against