# Om Naresh v. U.P. State Public Services Tribunal Lucknow

- **Citation:** (2019) 2 ILRA 1615
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-17
- **Case number:** Service Bench No. 1736 of 1998
- **Bench:** Anil Kumar, Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-naresh-v-u-p-state-public-services-tribunal-lucknow-44614
- **Pages:** 7

## Headnote

A. Service Law -termination - conditional
and
temporary
appointment
of
the
petitioner - automatic termination when
regular appointment is made

The "temporary appointee" has no right to the
post, and hence the petitioner has no right to
continue even if the post continues to exist.
(Para 17 and 18)
If the order of termination is "termination
simpliciter", no opportunity for hearing is
required to be given to the employee. (Para 19)

B. Review Application - scope of review -
maintainability of review application
The application for review is maintainable only
on the grounds mentioned in Order 47, Rule 1
C.P.C. A party filing a review application on
1616 INDIAN LAW REPORTS ALLAHABAD SERIES
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. (para 28, 29 and 30)

The review application is not filed for the
pleasure of the parties or even as a device for
ventilating remorselessness but ought to be
restored to with a great sense of responsibility
as well. (Para 31)

Review application dismissed (E-10)
Cases Referred: -

## Text

2 All. Om Naresh Vs U.P. State Public Service Tribunal Lucknow
1615
that once there was no prior approval to
the appointment of the petitioner on a
Class
III
post
consequently
the
appointment of the petitioner is itself void
ab-initio in the eyes of law. Having thus
being
appointed
without
any
prior
approval consequently this Court cannot
come to the rescue of the petitioner more
particularly when the appointment of the
petitioner is void ab-initio and having
been made without prior approval of the
competent authority.

12. So far as the judgments relied
upon by learned counsel for the petitioner
in the case of Kunda Motiram Bodalkar
(supra), Ashika Prasad Shukla (supra),
C/M Sarvodaya Inter College (supra)
and Pramod Kumar Pandey (supra) are
concerned, suffice to state that they all
pertain to appointment of Assistant
Teachers who are governed by different
set of rules and provisions of law while
the
present
case
pertains
to
an
appointment on a Class III post which is
governed by Regulation 101 of Chapter
III of the Act of 1921 and hence all the
aforesaid cases are distinguishable on
their own facts. Further the judgment in
the case of Abhendra Anand Singh
(supra)
has
been
passed
without
considering the judgment of Prabhat
Kumar Sharma (supra), Shesh Mani
Shukla (supra), Jagdish Singh (supra),
Ms. Shailja Shah (supra), U.P. Avas
Evam
Vikas
Parishad
(supra),
Raghuwar Pal Singh (supra) and
Pawan Kumar Mishra (supra) and even
otherwise this Court after considering all
the aforesaid Division Bench's judgments
including the judgments of Apex Court
has held in the case of Deepak Kumar
Singh (supra) that prior approval is sinequa-non for a valid appointment on a
Class III post.

13.

Accordingly,
taking
into
consideration the aforesaid discussion no
case for interference is made out. The writ
petition is dismissed.
----------

(2019)10ILR A 1615

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.10.2019

BEFORE

THE HON'BLE ANIL KUMAR, J.
THE HON'BLE SAURABH LAVANIA, J.

Service Bench No. 1736 of 1998

Om Naresh ...Petitioner
Versus
U.P. State Public Services Tribunal
Lucknow ...Respondent

Counsel for the Petitioner:
Sri Vijay Krishna, Sri G.C. Verma, Sri
Prabhakar Tewari.

Counsel for the Respondent:
C.S.C.

A. Service Law -termination - conditional
and
temporary
appointment
of
the
petitioner - automatic termination when
regular appointment is made

The "temporary appointee" has no right to the
post, and hence the petitioner has no right to
continue even if the post continues to exist.
(Para 17 and 18)
If the order of termination is "termination
simpliciter", no opportunity for hearing is
required to be given to the employee. (Para 19)

B. Review Application - scope of review -
maintainability of review application
The application for review is maintainable only
on the grounds mentioned in Order 47, Rule 1
C.P.C. A party filing a review application on
1616 INDIAN LAW REPORTS ALLAHABAD SERIES
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. (para 28, 29 and 30)

The review application is not filed for the
pleasure of the parties or even as a device for
ventilating remorselessness but ought to be
restored to with a great sense of responsibility
as well. (Para 31)

Review application dismissed (E-10)
Cases Referred: -
1. Dharmendra Kumar Tiwari Vs St of U.P. &
ors (2002) All LJ 1216
2. Indian Drugs & Pharmaceuticals Ltd. Vs
Workmen, Indian Drugs & Pharmaceuticals
Ltd. (2007) 1 SCC (L & S) 270
3. M/s Thungabhadra Industries Ltd. Vs The
Government of Andhra Pradesh represented
by the Deputy Commissioner of Commercial
Taxes, Anantpur AIR (1964) SC 1372
4. Subhash Vs St of Mah & anors AIR (2002) SC 2537
5. Bhagwant Singh Vs Deputy Director of
Consolidation & anr AIR (1977) All. 163
6. Shivdeo Singh Vs St of Pun AIR (1963) SC 1909
7. Zahira Habibullah Sheikh Vs St of Guj
(2004) 5 SCC 353 8. P.N. Eswara Iyer etc. Vs
Registrar Supreme Court of India (1980) 4
SCC 680
9. Ramdeo Chauhan Vs St of Assam (1999) 9 SCC 323
10. Devender Pal Singh Vs St of NCT of Delhi
AIR (2003) SC 3356

(Delivered by Hon'ble Saurabh Lavania, J)

1. Heard Sri G.C. Verma, learned
counsel for the review applicant/petitioner and
learned counsel for the State-respondents, Sri
Amit Sharma.

2. Present review application has
been filed for reviewing the judgment and
order dated 27.01.2017, whereby this
Court after recording the finding, quoted
hereinunder, dismissed the writ petition
and affirmed the order dated 09.08.1998
passed by U.P. State Public Services
tribunal (in short "Tribunal") in claim
petition
No.278/V/(F)/1992,
whereby
Tribunal dismissed the claim petition and
affirmed the order of termination dated
31.03.1992.

"Petitioner was engaged as
Junior Clerk in a short term vacancy on
temporary basis on 22.06.1991 and after
joining of regular employee, he was
ceased. Admittedly, petitioner had no
right to hold post since his appointment
was temporary and on short term basis.
Hence, we find no error on the part of
Tribunal in dismissing claim petition."

3. Before the Tribunal, the petitioner
challenged the order of termination dated
31.03.1992
and
also
sought
the
consequential reliefs. The reliefs sought
by the petitioner before the Tribunal are
quoted under for ready reference:-

"Wherefore,
it
most
respectfully prayed that this Hon'ble Tribunal
may be please to much the impugned order
dated 31.03.1992 (contained in Annexure no.1
to this petition) with a declaration that the
petitioner continues in his service and is
entitled to his fully pay, which he would have
been entitled in absence of the impugned
order.

Any other orders or direction
appropriate in the circumstances of the
case and deemed just and proper by the
Hon'ble Tribunal may also be passed
along with cost of this claim petition."
2 All. Om Naresh Vs U.P. State Public Service Tribunal Lucknow
1617

4. The Tribunal after considering the
material available on record dismissed the
claim petition of the petitioner vide order
dated
05.05.1998,
with
following
observation:-

"From the perusal of annexure
No.1 it is clearly proved that the
petitioner was working on daily wages
basis
and
his
services
had
been
terminated
w.e.f.
after
noon
of
31.03.1992. The petitioner being a daily
wager he could not be treated to be adhoc appointee even he could not be
regularized under any of Government
order
for
regularization
of
ad-hoc
services of Government Servant. In these
circumstances I am fully convinced with
the contention of the learned Presenting
Officer that the petitioner has no lien in
respect of the post of a Junior Clerk, as
such the termination order is legal and
justified."

5. Aggrieved by the order dated
05.05.1998 passed by the Tribunal and
order of termination dated 31.03.1992 the
petitioner filed the writ petition, in which
the judgment and order dated 27.01.2017,
under review, was passed.

6. Brief facts of the case are that initially
the petitioner was appointed in the pay scale
of Junior Clerk vide order dated 22.06.1991,
against short term vacancy on the post of
Head Clerk, by the opposite party no.4,
Principal, Government Industrial Training
Institute, Bareilly. The appointment was
purely temporary and conditioned. The
condition of appointment was to the effect that
the appointment would come to an end
automatically, if Directorate any person on the
post in question. The relevant portion of
appointment order dated 22.06.1991 reads as
under:-

Þ{ks=h; lsok;kstu dk;kZy;] cjsyh
}kjk lEizsf"kr lwph ls foHkkxh; p;u lfefr
}kjk laLrqfr ds vk/kkj ij iath;u ua0&lh1881@91 Jh vkse ujs'k iq= Jh yYyw izlkn
dks vodk'kdkyhu fjDfr ds fo:) dfu"B
fyfid
ij
osrueku
:
950&20&1150&n0jks0&25&1500 esa iq.kZr;k%
vLFkk;h :i ls fu;fDr fd;k tkrk gSA
funs'kky; }kjk eq[; fyfid in ij rSukrh gksus
ij Jh vkse izdk'k dh lsok,a Lor% lekIr
le>h tk;sxhAß

7. On 31.07.1991, an order was
issued by the opposite party no.4. The
order dated 31.07.1991 also reflects that
the appointment of the petitioner was in
the pay scale of Junior Clerk against the
post of Senior assistant and was purely
temporary and conditional,. The condition
in the appointment was to the effect that
the appointment of petitioner would come
at an end automatically, if an appointment
is made on the post of Senior Assistant by
the Director. The relevant portion of order
dated 31.07.1991 is quoted below:-

Þbl
laLFkku
ds
i=kad%LFkk0@d0fy0@fu0@91@3153&53
fnukad% 22&06&1991 esa vkaf'kd la'kks/ku djrs
gq, Jh vkse ujs'k dks ofj"B fyfid lgk;d ds
fo:)
dfu"B
fyfid
osrueku
:
950&20&1150&n0jks0&25&1550
esa
iw.kZr;k
vLFkkbZ :i ls fu;qDr fd;k tkrk gSA
funs'kky; }kjk ofj"B lgk;d dh rSukrh fd;s
tkus ij Jh vkse ujs'k dh lsok,a Lor% lekIr
le>kh tk,axhAß

8. Thereafter vide order dated
12.11.1991
he
was
transferred
to
Government Industrial Training Institute,
Anwala, Bareilly and while was working
at Anwala, vide order dated 31.03.1992,
the services of the petitioner came to an
end. The relevant portion of order dated
31.03.1992 reads as under:-
1618 INDIAN LAW REPORTS ALLAHABAD SERIES

Þjkt0vkS0iz0la0vkaoyk] cjsyh esa
dfu"B fyfid ds in ij nSfud osru ij
dk;Zjr deZpkjh Jh vkse ujs'k dh lsok,a fnukad
31-03-1992 ds mijkUr lekIr dh tkrh gSAß

9. Aggrieved by the order dated
31.03.1992, the petitioner filed the claim
petition before Tribunal, which was
dismissed on 05.05.1998.

10. The writ petition filed against
the aforesaid order was dismissed by the
judgment and order dated 27.01.2017,
under review.

11. Before us, while pressing the
review application, the arguments, as
advanced by the learned counsel for
petitioner Sri G.C.Verma, are summarized
as under:-

(i) The appointment of the
petitioner was on temporary basis and he
was
terminated
vide
order
dated
31.03.1992 treating him to be daily wage,
and that for without giving proper
opportunity of hearing.

(ii) After being appointed as
temporary basis at Government Industrial
Training Institute, Bareilly the petitioner
was transferred to Government Industrial
Training Institute, Anwala, Bareilly on
clear
regular
vacancy,
treating
the
petitioner as regular employee and thus
the termination of the services of
petitioner treating him as daily wage
was/is not justified rather illegal.

(iii) The order of termination
dated 31.031992 was passed in violation
of terms of appointment.

(iv) It is also submitted that
while passing the judgment and order
dated 27.01.2017 this Court has not taken
note of the entire facts of the case as such
the present review petition has been filed.

12. We put a query to Sri
G.C.Verma, who appeared for review
petitioner,
that
which
appointments/engagements are included
in expression "temporary appointee" and
whether
"
temporary
appointee"
is
governed by the Rules which says that
prior to passing of order of termination
simplicitor an opportunity of hearing
should
be
given
to
a
"temporary
appointee".

13. To aforesaid, the learned counsel
for the review petitioner could not place
any Rule and also failed to explain the
term/expression "temporary appointee".

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

15. It transpires from the record,
which is admitted position, that the
appointment of petitioner was purely
temporary and against short term vacancy,
which was made on 22.06.1991 and came
to an end vide order dated 31.03.1992.
The petitioner worked for a very short
period/span. The services of the petitioner
were not regularized on the post of Junior
Clerk and contrary to the same there is
neither any pleading nor an order, on
record.

16. Before coming to the conclusion
that whether the reasoning given by this
Court while dismissing the writ petition
vide judgment and order dated 27.01.2017
is perfectly valid or not, we would like to
consider
the
expression
"temporary
appointee" and right to hold the post by a
"temporary appointee".

17. In regard to aforesaid the
Division Bench of this Court in the case
of (Dharmendra Kumar Tiwari Vs. State
2 All. Om Naresh Vs U.P. State Public Service Tribunal Lucknow
1619
of U.P. and others) reported in 2002 All
LJ 1216, after observing, as under,
dismissed the writ petition.

"4. Learned counsel for the
petitioner submitted that the petitioner
has a right to continue till a regularly
selected candidate is available for the
post. We do not agree with this
submission. There is no such legal
principle that a temporary employee has a
right to continue on the post till a
regularly selected candidate is available
for that post. Rather, the legal position is
just the reverse, namely, that a temporary
employee has no right to the post, and
hence he has no right to continue even if
the post continues to exist. An ad hoc
appointee is also a temporary appointee.
The expression ''temporary appointee' is a
general expression under which there are
several
sub-categories,
e.g.
casual
appointee, daily wage appointee, ad hoc
appointee and even a probationer. All
such
sub-categories
fall
within
the
general
category
of
a
temporary
appointee, as contrasted to a permanent
appointee. The legal position is that a
temporary appointee has no right to the
post and it is not correct to say that a
temporary appointee has a right to
continue
till
a
regularly
selected
candidate is available for the post.

5.Learned
counsel
for
the
petitioner has brought to our notice
certain interim orders passed by the
Lucknow Bench of this Court vide
Annexures 3 and 4 to the writ petition.
These are interim orders and hence are
no precedents. The law is well settled by
the Supreme Court in various decisions
that a temporary employee has no right to
the post videState of U.P.v.Kaushal
Kishore, (1991) 1 SCC 691 : (1991 AIR
SCW 793),Triveni Shankar Saxenav.State
of U.P., 1992 Supp (1) SCC 524 : AIR
1992 SC 496 : (1992 All LJ 230) etc.
Since the law has been clearly laid down
on this point by the Supreme Court
anything contrary held by the Lucknow
Bench of this Court is not good law."

18. In the case of Indian Drugs &
Pharmaceuticals
Ltd.
Vs.
Workmen,
Indian Drugs & Pharmaceuticals Ltd.
(2007) 1 SCC (L&S) 270, the Hon'ble
Apex Court observed as under:-

"13. It may be mentioned that a
daily-rated or casual worker is only a
temporary employee, and it is well settled
that a temporary employee has no right to
the post videState of U.P.v.Kaushal Kishore
Shukla[(1991) 1 SCC 691 : 1991 SCC (L&S)
587 : (1991) 16 ATC 498] . The term
"temporary employee" is a general category
which has under it several sub-categories
e.g. casual employee, daily-rated employee,
ad hoc employee, etc.

14. The distinction between a
temporary employee and a permanent
employee is well settled. Whereas a
permanent employee has a right to the post,
a temporary employee has no right to the
post. It is only a permanent employee who
has a right to continue in service till the age
of superannuation (unless he is dismissed or
removed after an inquiry, or his service is
terminated due to some other valid reason
earlier). As regards a temporary employee,
there is no age of superannuation because he
has no right to the post at all. Hence, it
follows that no direction can be passed in the
case of any temporary employee that he
should be continued till the age of
superannuation."

19. It is also settled principle of law
that if an order of termination is
"termination simpliciter" then in that case
1620 INDIAN LAW REPORTS ALLAHABAD SERIES
the opportunity of hearing before passing
the order of termination is not required.

20. In the instant case of termination
dated 31.03.1992, as appears from the
order itself, is termination simpliciter.
Thus, there was no need to provide
opportunity of hearing to the petitioner
before issuing it.

21. Considering the facts of the case
particularly, nature of the appointment of
the petitioner, which for a very short span
and purely temporary appointment, and
the principle settled with regard to right to
hold the post vests in the daily wages or
temporary
appointee,
mentioned
hereinabove, we are of the view that the
reasons given by the Division Bench,
while passing the judgment and order
dated 27.01.2017, under review, are
perfectly valid.

22. In addition to above, though we
have considered the facts of the case
while coming to the conclusion aforesaid,
we would like to add the scope of review.

23. In this regard Hon'ble the Apex
Court in the case of M/s. Thungabhadra
Industries Ltd. Vs. The Government of
Andhra Pradesh represented by the
Deputy Commissioner of Commercial
Taxes, Anantapur, AIR 1964 SC 1372,
The Apex Court held that a review is by
no means an appeal in disguise whereby
an erroneous decision is reheard and
corrected. but lies only for patent error.
We do not consider that this furnishes a
suitable occasion for dealing with this
difference exhaustively or in any great
detail, but it would suffice for us to say
that
where
without
any
elaborate
argument one could point to the error and
say here is a substantial point of law
which stares one in the face, and there
could reasonably be no two opinions
entertained about it, a clear case of error
apparent on the face of the record would
be made out.

24. Hon'ble the Apex Court in
Subhash Vs. State of Maharastra &
Another, AIR 2002 SC 2537, the Apex
Court emphasised that Court should not
be misguided and should not lightly
entertain the review application unless
there are circumstances falling within the
prescribed limits for that as the Courts
and Tribunal should not proceed to reexamine the matter as if it was an original
application before it for the reason that it
cannot be a scope of review.

25. This Court in the case of
Bhagwant Singh Vs. Deputy Director of
Consolidation & Another, AIR 1977
All. 163, rejected the review application
filed on a ground which had not been
argued earlier because the counsel, at
initial stage, had committed mistake in
not relying on and arguing those points,
held as under:-

26. It is not possible to review a
judgment only to give the petitioner a
fresh inning. It is not for the litigant to
judge of counsel's wisdom after the case
has been decided. It is for the counsel to
argue the case in the manner he thinks it
should be argued. Once the case has been
finally argued on merit and decided on
merit, no application for review lies on
the ground that the case should have been
differently argued."

27. In Shivdeo Singh v. State of
Punjab, AIR 1963 SC 1909, in a review
petition filed under Order 47 Rule 1 CPC
the Supreme Court held that the power of
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