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

- **Citation:** (2010) 2 ILRA 547
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-05-25
- **Case number:** Special Appeal No. 182 of 2010
- **Bench:** Pradeep Kant, Anil Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nagesh-singh-v-state-of-u-p-and-others-41626
- **Pages:** 7

## Text

2 All] Nagesh Singh V State of U.P. and others
547
admitted facts and no additional evidence
is required. He has further submitted that
Smt. Sabira Bibi was not competent to
execute the will in respect of the whole
property and she could execute the will
deed only in respect of 1/3rd portion of the
said house, as per the provisions of
Mohammedan Law. The merits of the
amendment
application
cannot
be
considered by the appellate court at the
time of its disposal and the said point has
to be considered by the concerned court at
an appropriate stage. It appears that no
admission made by the plaintiffs, has been
withdrawn by way of amendment. Instead
of it, additional plea has been taken by the
plaintiffs to get their alleged share
partitioned. It is true that the learned
appellate court has not considered the
impact of proviso appended to Order VI
Rule 17 of C.P.C. specifically in it's order.
Now the point for determination is as to
whether any interference can be made in
the impugned order by this court in
exercise of it's revisional powers under
Section 115 C.P.C.

20. Sub-section (3) of Section 115
C.P.C., as applicable in State of U.P.,
clearly indicates that the superior court
shall not vary or reverse any order made
except when the impugned order comes
within the purview of sub-clause (i) or subclause (ii) of sub-section (3). In the instant
case,
the
plaintiffs'
application
for
amendment in the plaint has been allowed.
If the said amendment application would
have been rejected and the order would
have been passed in favour of the
revisionist/defendant, the appeal would not
have been disposed of finally. On the other
hand, if the impugned order is allowed to
stand, it would neither occasion a failure of
justice nor would cause irreparable injury
to the revisionist/defendant. This view has
been fortified by the principles of law laid
down by the Hon'ble Supreme Court in the
case of Prem Bakshi & others (supra) and
Baldev Singh & others etc. (supra).
Besides it, the revisionist/defendant has
also been provided an opportunity to file
additional
written
statement
to
the
amended plaint vide impugned order dated
12.08.2008. Since the impugned order does
not come within the purview of sub-clause
(i) or sub-clause (ii) of sub-section (3) of
Section 115 C.P.C., no interference is
called for in the said order by this Court in
exercise of it's revisional powers.

21. .In view of the aforesaid
discussion, I am of the view that this
revision lacks merit. Consequently, it is
dismissed with costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.05.2010

BEFORE
THE HON'BLE PRADEEP KANT, J.
THE HON'BLE ANIL KUMAR, J.

Special Appeal No. 182 of 2010

Nagesh Singh

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

Constitution of India Art.-226-Right to
Continue
in
Service-Contractual
appointment-extended
from
time
to
time-on
certain
complaint
by
local
M.L.A.-extension refused-Single Judge
rightly declined to interfere-Contractual
appointee has no right to continueAppeal dismissed.

Held: Para 18
Keeping
in
view
the
facts
and
circumstances stated hereinabove the
reply to the said question would be in
negative. As the appointment of the
548 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
appellant being for a fixed term, he has
no right to continue beyond the period of
indicated in his appointment letter which
is a time bound for a fix period.
Extension of appointment by judicial
order is not permissible under law as a
fixed term appointment would come to
an end automatically by efflux of time.
In case, the contention of the appellant
is accepted, it would be amount to
rewriting
the
appointment
letter
allowing
the
appellant
to
continue
without their being letter of appointment
issued by the competent authority for a
period after the term of his term/tenure
of engagement is over.
Case law discussed:
(2009) 4 UPLBEC 3333, 1992(4) SCC 33, IT
2006 (4) SC 420, 1994 (12) LCD, 76, 1992 (5)
SLR 86, (2002) 2 UPLBEC1373.

(Delivered by Hon'ble Pradeep Kant, J.)

1. Heard Sri Manish Kumar, learned
counsel for the appellant, Sri A.M.
Tripathi, Sri Virender Nath Verma on
behalf of the respondents.

2. By means of present special
appeal, the order dated 23.03.2010 passed
by the learned Single Judge in Writ
Petition No. 1251(SS) of 2009 (Nagesh
Singh Vs. State of U.P. & Others) is
under challenge.

3. Factual matrix in brief of the
present case are that in the State of Uttar
Pradesh in order to provide Basic
Education, a project/scheme has been
initiated known as 'Serv Shiksha Abhiyan'
(hereinafter referred to as the 'scheme')
which is to be implemented in all the
districts of Uttar Pradesh. In order to
implement the Scheme, one of the
decision taken by the State Government is
to appoint a person on the post of District
Coordinator (construction).

4. Accordingly, for the District
Sultanpur an advertisement was issued by
the Director (opposite party no.2) to
appoint a person on the contract basis on
the
post
of
District
Coordinator
(construction) in order to look after the
construction work to be carried out for the
implementation the Scheme, the said
appointment is to be made through
District level Committee consisting of the
following members:

1. District Magistrate
2. District Basic Education Officer,
member secretary
3. District Social Welfare Officer
4. Executive Engineer PWD, member

5.

In
response
to
the
said
advertisement, the petitioner and other
candidates submitted their candidature
and thereafter the petitioner was selected
and an order dated 13.02.2007 was issued
appointing him on the post of District
Coordinator(Construction), Sultanpur on
ad-hoc basis for a fixed term of one year
and the petitioner joined his duties
accepting the term of his appointment
order, thereafter the said contract of
appointment was extended time and again
and the last extension was given with
effect from 13.02.2008 for a period of one
year.

6. While the petitioner was working
and discharging his duties, an inspection
was done in respect to the construction
work in Primary School and High School
which
were
constructed
in
Block
Jaisinghpur, District Sultanpur, as per the
submission made on behalf of the
appellant, the place where the work was
performed falls under the legislative
Constituency of one Sri O.P. Singh,
M.L.A. who submitted a report dated
2 All] Nagesh Singh V State of U.P. and others
549
06.07.2009 against him in respect to some
alleged defect and irregularities in the
construction of the aforesaid schools and
taking into consideration the same, the
services of the petitioner were terminated
by order dated 26.08.2009.

7. Aggrieved by the said order of
termination, the petitioner approached this
Court by filing the writ petition no. 5538
of 2009 (Nagesh Singh Vs. State of U.P.
and others) on 04.09.2009, disposed off
with the following directions:-

"The contention of petitioner is that
the term of petitioner has been renewed
but on the basis of complaint, the order
impugned has been passed. Further
submission has been made that in view of
letter dated 8th December, 2008, Director
of Education (Basic) has power to pass
appropriate orders terminating the term of
petitioner but Basic Shiksha Adhikari has
passed an order, therefore, the order
impugned is bad. After consideration of
submission made by petitioner, I am of
view that admittedly, appointment of
petitioner is on contract basis for a period
of one year subject to renewal. The
appointment of petitioner has not been
made
under
any
relevant
Rules.
Therefore,
if
order
terminating
the
contract has been passed that cannot be
said to be illegal. In view of aforesaid
fact, I am not inclined to interfere. The
writ petition is dismissed, however,
without imposing any cost. However,
dismissal of the present writ petition will
not come in the way of petitioner to
approach respondent No.2 regarding his
grievances, which have been stated in the
present writ petition."

8. Order dated 04.09.2009 passed in
Writ Petition No. 5538 was challenged by
way of Special Appeal No. 667 of 2009
by the appellant and on 06.10.2009, an
interim order has been passed in his
favour. Operative portion of the same is
as under:-

"In view of the arguments of the
learned counsel for the appellant that the
order terminating the term of the contract
appointment has been passed by an
authority, who is not competent to pass
the impugned order as per Office
Memorandum dated 8.12.2008, and also
the fact that the renewal of the term of the
contract appointment of the appellant was
done after considering the entire record,
extending the term of the appellant from
14.2.2009 to 13.2.2010 coupled with the
argument that the impugned order has
been
passed
without
affording
any
opportunity to the appellant, though it
terminates the already extended term of
contract
appointment,
we,
stay
the
operation and implementation of the
impugned under dated 04.09.2009 under
challenge in the instant special appeal,
passed by the learned Single Judge and
also the order of termination dated
26.8.2009, till further orders of the Court
or till completion of the period of contract
appointment i.e. 13.2.2010, whichever is
earlier. However, it will be open for the
respondents to move application for
vacation of stay order alongwith the
counter affidavit."

9.

Thereafter,
the
contractual
appointment of the petitioner on the post
in question had come to an end on
13.02.2010. Further, the Zila Education
Project Committee had taken a decision
not to renew the contractual appointment
of the petitioner for the year 2010-11,
accordingly an order was passed by the
District
Basic
Education
Officer,
550 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Sultanpur on 16.02.2010 terminating the
contractual appointment of the petitioner.
The same was challenged by means of
Writ Petition No. 1251(SS) of 2010
(Nagesh Singh Vs. State of U.P. and
others),
dismissed
by
order
dated
23.03.2010 with the following directions:-

"Two points have been put forward
by the learned counsel for the petitioner.
First is that the order passed by the
opposite parties is without jurisdiction
and it ought to have been passed by the
Director but it is clarified that a Circular
was issued wherein it has been clarified
that the power of termination and
appointment is vested with the District
Project Committee and in the present case
the District Project Committee has taken
into consideration the entire working of
the petitioner of the preceding year and
passed the impugned order, therefore, the
question of jurisdiction as argued by the
learned counsel for the petitioner fails.
The next argument is that the renewal of
the petitioner has been refused only on
account of bias prevailing with the MLA
who wrote a letter against him. The
question of bias at the behest of the MLA
could have got some force but the
decision was taken by the BSA at earlier
point of time. Now the decision has been
taken by the District Project Committee
and there is no allegation of bias against
the members of the District Project
Committee.
The
District
Project
Committee is supposed to undertake all
exercise and consider the entire working
of the petitioner in the preceding year.
The petitioner's working in the preceding
year has been taken into consideration and
the District Project Committee has found
that the work of the petitioner is
unsatisfactory. Once the working of the
petitioner
has
been
found
to
be
unsatisfactory while reviewing the entire
working of the petitioner, there was no
question for renewal of the contractual
appointment
of
the
petitioner.
The
argument of the learned counsel for the
petitioner in regard to bias also fails. In
this view of the matter, the petition is
devoid of merit and it is accordingly
dismissed."

10. Aggrieved by the said order
dated 23.03.2010, the instant Special
Appeal has been filed by appellant.

11. Sri Manish Kumar, learned
counsel for the appellant while assailing
the order dated 23.03.2010 submits that
the action on the part of the respondent
no. 4 thereby not renewing the contractual
appointment of the appellant for the
period of 2010-11 and passing the order
date 16.02.2010 is per se illegal as there
was no material or reason before the
Committee on whose recommendation the
impugned order was passed, so the same
is liable to be set aside

12. He further submits that the order
in question has been passed only due to
the political pressure exerted by sitting
B.S.P. MLA and report submitted by him
who was personally prejudiced and
annoyed against the petitioner as he had
submitted an adverse report against his
relative. Except the said report there was
no other material against the petitioner
which was taken into consideration while
passing the impugned order, so the said
order passed under the garb of political
influence is arbitrary in nature, thus
violative of Article 14 of the Constitution
of India and in contravention to the
principles of natural justice, liable to be
quashed. In support of his argument Sri
Manish Kumar, learned counsel for the
2 All] Nagesh Singh V State of U.P. and others
551
appellant placed reliance on the case of
Rashmi Awasthi & Others Vs. State of
U.P. and others [(2009) 4 UPLBEC
3333].

13. In rebuttal, the learned counsel
for the respondents submits that the
appointment of the petitioner on the post
of District Coordinator (Construction),
Sultanpur was a contractual appointment
which came to an end on 13.02.2010 and
was not renewed for the next year i.e.
2010-11 by the competent authority. As
such, the petitioner who was appointed on
the contract basis has got no right or locus
to file the present writ petition to get this
contractual appointment renewed, so the
present writ petition filed by him lacks
merit and liable to be dismissed.

14. We have heard learned counsel
for the parties and perused the record.

15. Admittedly, in the present case,
the petitioner was initially appointed on the
post of District Coordinator(Construction)
by order dated 13.02.2007 for a fixed term
which
was
renewed
subsequently
thereafter and last term/tenure of the
appellant was up till 13.02.2010.

16. So, it is not disputed as per the
terms of appointment/engagement the
appellant was entitled to work on the post
of District Coordinator (Construction) in
the District Sultanpur only up till
13.02.2010 and thereafter by the efflux of
time, the same came to an end.

17. Now, in the light of the above
said facts, the question which is to
examine in the instant case whether the
appellant can claim as a matter of right to
continue on the post in question despite
the aforesaid condition of appointment
order and when admittedly letter of
appointment had also lost it's efficacy due
to efflux of time so moto after expiry of
term and whether the appellant in such
circumstances can be directed to continue
even beyond the said period to work and
discharge his duties to be question answer
in the present case.

18. Keeping in view the facts and
circumstances stated hereinabove the
reply to the said question would be in
negative. As the appointment of the
appellant being for a fixed term, he has no
right to continue beyond the period of
indicated in his appointment letter which
is a time bound for a fix period. Extension
of appointment by judicial order is not
permissible under law as a fixed term
appointment would come to an end
automatically by efflux of time. In case,
the contention of the appellant is
accepted, it would be amount to rewriting
the appointment letter allowing the
appellant to continue without their being
letter of appointment issued by the
competent authority for a period after the
term of his term/tenure of engagement is
over.

19. In the case Director, Institute of
Management Development, U.P. Vs.
Pushpa Srivastava(Smt.), 1992(4) SCC
33., the Hon'ble Apex Court held as
under:-

"The appointment, which is made for
a fixed tenure comes to an end on the
expiry of the period of appointment
provided in the letter of appointment and
the incumbent need not be terminated as
the termination of employment comes
automatically by efflux of time. In this
case, admittedly, the appointment of the
petitioner is for fixed tenure and in case
552 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
the contention of petitioner is accepted, it
will amount to giving an appointment by
this Court for the period subsequent there
to substituting itself to the position of
appointing authority. This is neither
permissible in law nor should be done.
When a procedure is prescribed to do a
thing in a particular manner, it should not
be done otherwise."

20. Further a Constitution Bench of
the Apex Court in Secretary, State of
Karnataka and others Vs. Uma Devi and
others, IT 2006 (4) SC 420, in Para 34 of
the judgment has observed as under:-

"If it is 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."

21. In the case of L.I.C. Vs. Sri
Rajiv Kumar Srivastava 1994 (12) LCD,
76 this Court has held placing reliance on
the
case
of
Director
Institute
of
management
Development,U.P.
Vs.
Pushpa Srivastava 1992 (5) SLR 86
where the appointment is purely ad-hoc
appointment and is contractual and by
efflux of time, the appointment comes to
an end. The person holding such post has
no right to continue on the said post.

22. In the case of Alok Kumar
Singh (Dr.) and 15 others Vs. State of
U.P. and others [2002) 2 UPLBEC1373],
it is held as under :-

"In view of the averments made in the
counter affidavit of the State Government
it is evident that the petitioners are working
only on contact basis without any regular
selection through the Commission, and
they cannot be equated with regularly
selected teachers. Hence, they have no
right to the post. Their appointment was
under
the
Government
Order
dated
07.04.1998 to deliver lecturers for a very
short span of time and they cannot claim
regularization. Their duties and function
are arise different from the regularly
selected teachers. These appointments
were made only due to the shortage of
regularly selected candidates so that the
teaching work may not suffer. However,
the appointees cannot claim any right to
continue. Only these who have been
regularly selected by the Commission have
a right to continue."

23. So far as the submission made by
the learned counsel for the appellant that
the
contractual
appointment
of
the
appellant was not renewed only due to
report submitted by the sitting MLA and
the same cannot be a basis of not extending
the
contractual
appointment
of
the
appellant cannot be accepted. As in the
case of Uma Devi (Supra), the Apex Court
in Para 36 of the judgment has observed as
under:-

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 eyes open. It may be true that he is
not in a position to bargain not at arms
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
2 All] Union of India and another V Smt Chandrakali Chaturvedi and others
553
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 causal
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 causally,
would
not
be
getting
even
that
emploi6yment when securing of such
employment brings at least some succour
to them. After all, innumerable citizens of
our vast, contrary are in search of
employment and one is not compelled to
accepts
the
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 flewing from it. In other
words,
even
while
accepting
the
employment, the person concerned knows
the nature o f his employment. It is not an
appointment to a post in the real sense of
the term."

24. For the foregoing reasons, there is
neither any illegality nor infirmity in the
order dated 23.03.2010 passed by the
learned Single Judge. Accordingly, the
present appeal filed by the appellant lacks
merit and is accordingly dismissed.

No order as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.05.2010

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE DR. SATISH CHANDRA, J.

First Appeal From Order No. 279 of 2001

Union of India and another ...Petitioner
Versus
Smt. Chandrakali Chaturvedi and others

 ...Respondent

Councel for the Petitioner:
Sri K. D. Nag

Counsel for the Respondent:
Sri Deepak Kumar Agarwal

Motor Vehicle Act, 1998, Section 173read with Employees State insurance Act
1948-Section 53-deceased an employee
of Telecom Depott-sustained injury due
to rashness and negligence of Zeep
Driver of Depott.-Tribunal awarded Rs
287520 under motor vehicle Act-award
Challenged on ground-deceased being
member of employees state insurance
Act-not entitled for any amount toward
compensation-held Motor Vehicle Act
Specifically deals with accidental death,
injuries-while insured workman entitled
for
sickness
cash
benefit,
materily
benefit, disablement and dependents
benefits including medical care.

Held: Para 12 & 14

It is settled law that in case special law
does not cover the controversy, then it
shall be dealt with by general law. The
Motor Vehicles Act, 1988, specifically
deals with the accidental death, injuries
and compensation payable thereon. The
Tribunal
has
rightly
paid
the
compensation
to
the
claimants
in
pursuance of the power exercised under
the Motor Vehicles Act 1988.