# Mohd. Ajaz v. Managing Director & Ors - **Citation:** (2016) 7 ILRA 51 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-07-22 - **Bench:** Rakesh Srivastava - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-ajaz-v-managing-director-ors-44116 - **Pages:** 5 ## Text 7 All. Mohd. Ajaz Vs Managing Director & Ors. 51 11. In the light of the above, this Court answers the substantial question of law in this way that unregistered tenancy/lease deed dated 29.4.2001 which was basis of the original suit was inadmissible in evidence and the judgement of the first appellate court relying on it, is erroneous and perverse and is liable to be set asided. 12. Appeal is, accordingly, allowed. However, plaintiff will get back his Rs. 30,000/-with 6% of interest from the date of suit till payment is made from defendant on the basis of theory of undue enrichment. ------------ 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 Counsel for Petitioner: Ghaus Beg, Vishal Chaudhary Counsel for Respondents: S.K.Kaliya Held The petitioner was appointed purely on contract basis for a fixed term with clear stipulations that: The appointment would automatically terminate on expiry of the contractual period. No notice was required upon termination. No claim for regularisation or extension could be made. The petitioner's contractual appointment expired on 31.05.1996 by efflux of time. Merely because the petitioner was allowed to continue for some time beyond the contractual period on daily wage basis, no legal right accrued in his favour to claim continuation or renewal. In service jurisprudence, concepts such as holding over or adverse possession of post do not apply. A writ of mandamus cannot be issued to compel renewal of a contractual appointment or to continue a temporary employee whose term has expired. The alleged oral termination is legally immaterial because the appointment had already come to an end automatically under the terms of the contract. Additionally, more than 20 years had elapsed since termination; therefore, no equitable relief could be granted. The writ petition was dismissed. CASE LAW CITED: 52 INDIAN LAW REPORTS ALLAHABAD SERIES Director, Institute of Management Development U.P. v. Pushpa Srivastava M.S. Patil v. Gulbarga University State of Orissa v. Mamata Mohanty Secretary, State of Karnataka v. Uma Devi (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 driver-cum-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 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 All. Mohd. Ajaz Vs Managing Director & Ors. 53 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 Karnataka and others v. Uma Devi and others, (2006) 4 SCC 1, has observed as under :- 54 INDIAN LAW REPORTS ALLAHABAD SERIES "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 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." 7 All. Hari Pal Singh Vs State Of U.P. & Ors. 55 (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. ----------- ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 26.07.2016 BEFORE THE HON'BLE DEVENDRA KUMAR UPADHYAYA, J. Service Single No.- 16642 Of 2016 Hari Pal Singh ...Petitioner Versus State Of U.P. & Ors. ...Respondents Counsel for Petitioner: Prafulla Tiwari, Lalta Prasad Misra Counsel for Respondents: C.S.C., Ashutosh Shahi, Brijesh Yadav 'Vijay', R.K.S. Suryavanshi, Ramesh Pandey Held Transfer after requisition but before advertisement is legally permissible. The Court held that once a vacancy on the post of Principal has been notified to the U.P. Secondary Education Services Selection Board under Section 10 of the U.P. Secondary Education Services Selection Board Act, 1982, the Management may still fill the vacancy by transfer provided that the Selection Board has not yet issued advertisement. Selection process commences with advertisement.