# Prashant Shukla v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 1040
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-14
- **Case number:** Spl. Appl. No. 218 of 2021
- **Bench:** Surya Prakash Kesarwani, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prashant-shukla-v-state-of-u-p-ors-46456
- **Pages:** 8

## Headnote

A. Service Law - Right of a contractual
employee - Legitimate expectation - When a
person enters a temporary employment or gets
engagement as a contractual or casual worker
and the engagement is not based on a proper
selection as recognized by the relevant rules or
procedure, he is aware of the consequences of
the appointment being temporary, casual or
contractual in nature. Such a person cannot
invoke the theory of legitimate expectation for
being
confirmed
in
the
post
when
an
appointment to the post could be made only by
following a proper procedure for selection and
in concerned cases, in consultation with the
Public Service Commission. (Para 19)

In the present case, the petitioner-appellant entered
into a contract voluntarily and with eyes wide open
for his engagement for a fixed period from
02.03.2020 to 31.8.2020 and on expiry of the period
of agreement, his agreement was not renewed and
he was not re-engaged. Sufficient reasons have been
disclosed in the order dated 06.05.2021 passed by
CDO, Kannauj for not extending the engagement of
the petitioner-appellant. (Para 14, 15)

It is settled law that a writ of mandamus can be
issued if a petitioner is able to establish that he has
legally protected and judicially enforceable subsisting
11 All. Prashant Shukla Vs. State of U.P. & Ors.
1041
right. The petitioner has completely failed to
demonstrate that he has any statutory or legal right
to compel the respondents to execute an agreement
for his re-engagement or further engagement as
Computer Operator for MANREGA in District Kannauj.
(Para 20)

Constitution of India - Article 226 - This Court
in exercise of its extraordinary, equitable and
discretionary jurisdiction u/Article 226 of the
Constitution of India has no power to re-write
contract or to compel the State to enter into an
agreement. (Para 23)

Appeal dismissed. (E-4)

Precedent followed:

## Text

1040 INDIAN LAW REPORTS ALLAHABAD SERIES
of respondents. The very submission made by
learned counsel for respondents, that petitioner
was on probation, therefore, his service can be
terminated, cannot be accepted in the light of
Rule 3(3) & 4 of Rules, 2013 alongwith
Schedule-B for promotion as well as law laid
down by the Apex Court in the matter of State
of Punjab(Supra), therefore, the contention
raised by learned counsel for respondents is
having no force.

20. Therefore, under such facts of the case
as well as provisions of Rules, 2013 and law laid
down by the Apex Court, probation of petitioner
shall be treated to be complete and his service
cannot be terminated on the ground that he was
on probation.

21. Petitioner has taken specific plea that
no Inquiry Officer has been appointed except the
show cause notice, no opportunity of hearing
was given to him before passing order which
was also not denied in the counter affidavit. In
the present case, petitioner was appointed on the
post of Junior Assistant on probation and
thereafter he has been promoted on the post of
Senior Assistant and in the light of discussions
made here-in-above, his service is to be treated
confirmed, therefore, petitioner cannot be
terminated from service without following the
procedure prescribed in Rule 23(5) of Rules,
2013.

22. Therefore, under such circumstances as
well as provisions of Rules, 2013 and law laid
down by the Apex Court, order of termination
dated 14.11.2019 passed by respondent No. 3 is
bad and is hereby set aside. Respondent No. 3-
District Judge, Maharajganj is directed to
reinstate the petitioner in service forthwith
alongwith all consequential benefits.

23. Accordingly, writ petition is allowed.

24. No order as to costs.
----------
(2021)12ILR A1040
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.11.2021

BEFORE

THE HON'BLE SURYA PRAKASH KESARWANI, J.
THE HON'BLE VIKAS BUDHWAR, J.

Spl. Appl. No. 218 of 2021

Prashant Shukla ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Surendra Prasad Sharma

Counsel for the Respondents:
C.S.C.

A. Service Law - Right of a contractual
employee - Legitimate expectation - When a
person enters a temporary employment or gets
engagement as a contractual or casual worker
and the engagement is not based on a proper
selection as recognized by the relevant rules or
procedure, he is aware of the consequences of
the appointment being temporary, casual or
contractual in nature. Such a person cannot
invoke the theory of legitimate expectation for
being
confirmed
in
the
post
when
an
appointment to the post could be made only by
following a proper procedure for selection and
in concerned cases, in consultation with the
Public Service Commission. (Para 19)

In the present case, the petitioner-appellant entered
into a contract voluntarily and with eyes wide open
for his engagement for a fixed period from
02.03.2020 to 31.8.2020 and on expiry of the period
of agreement, his agreement was not renewed and
he was not re-engaged. Sufficient reasons have been
disclosed in the order dated 06.05.2021 passed by
CDO, Kannauj for not extending the engagement of
the petitioner-appellant. (Para 14, 15)

It is settled law that a writ of mandamus can be
issued if a petitioner is able to establish that he has
legally protected and judicially enforceable subsisting
11 All. Prashant Shukla Vs. State of U.P. & Ors.
1041
right. The petitioner has completely failed to
demonstrate that he has any statutory or legal right
to compel the respondents to execute an agreement
for his re-engagement or further engagement as
Computer Operator for MANREGA in District Kannauj.
(Para 20)

Constitution of India - Article 226 - This Court
in exercise of its extraordinary, equitable and
discretionary jurisdiction u/Article 226 of the
Constitution of India has no power to re-write
contract or to compel the State to enter into an
agreement. (Para 23)

Appeal dismissed. (E-4)

Precedent followed:

1. Rajesh Bhardwaj Vs U.O.I. & ors., 2019 (2) ADJ
830 (Para 9)

2. Director, Institute of Management Development,
U.P. Vs Smt. Pushpa Srivastava, JT 1992 (4) S.C. 489
(Para 18)

3. Secretary, State of Karnataka & ors. Vs Umadevi &
ors., (2006) 6 SCC 1 (Para 19)

4. Director of Settlement, A.P. Vs M.R. Apparao,
(2002) 4 SCC 638 (Para 21)

Precedent distinguished:

1. Prem Chandra Gupta Vs St.of U.P. & ors., Special
Appeal No. 104 of 2021, decided on 14.06.2021 (Para 9)

2. Jagbhan Vs St. of U.P. & ors., Special Appeal
Defective No. 250 of 2021, decided on 14.06.2021
(Para 9)

Present Special Appeal challenges judgment
and order dated 09.08.2021, passed by Hon'ble
Single Judge.

(Delivered by Hon'ble Surya Prakash
Kesarwani, J. & Hon'ble Vikas Budhwar, J.)

1. Heard Sri Surendra Prasad Sharma,
learned counsel for the petitioner-appellant and
learned Standing Counsel for the Staterespondents.

Brief facts of the case

2. This special appeal has been filed
challenging the order dated 9.8.2021 passed by
learned Single Judge in Writ -A No.6652 of
2021 which is reproduced below:-

"Heard Sri Rahul Agarwal, learned counsel
for the petitioner and Sri Birendra Pratap Singh,
learned
Standing
Counsel
for
the
State
respondents.

The
contractual
engagement
of
the
petitioner has been brought to an end by the
respondents. Quite apart from the reasons which
have been taken into consideration, the principal
question which arises is whether the Court
should consider the grant of a prerogative writ
consequent to the contractual appointment of the
petitioner having been brought to an end. The
Court in this regard bears in mind the principles
enunciated by a Division Bench of the Court in
Rajesh Bhardwaj Vs. Union of India [2019 (2)
ADJ 830]. Undisputedly, the Court cannot by
way of a writ command the respondents to either
renew or perpetuate the contractual engagement
of the petitioner. In any case and since it is not
governed by any statutory rules or regulations,
the
Court
cannot
issue
a
declaration
invalidating
the
termination
or
direct
reinstatement.

Consequently, the writ petition fails and is
dismissed."

3. The petitioner had filed the aforesaid
Writ -A No. 6652 of 2021 challenging the order
dated 6.5.2021. The operative portion of the
impugned order in the writ petition is
reproduced below:-

ÞmDrkuqlkj ikfjr funsZ'kksa ds dze esa tuin Lrj ij
dEI;wVj vkijsVj dk in l`ftr u gksus] jkT; ejusxk izdks"B
y[kuÅ ls eujsxk lafonk dfeZ;ksa ds lh/ks muds [kkrs esa
ekuns; gLrkUrfjr fd;s tkus ,oa tuin Lrj ij dk;Zfgr
esa vko';drk u gksus ds -f"Vxr Jh iz'kkUr 'kqDyk dh lafonk
vof/k @ vuqcU/k fnukad 31-08-2020 dks lekIr gksus ij
vkxs lafonk ds uohuhdj.k fd;s tkus dh ftyk dk;Zdze
1042 INDIAN LAW REPORTS ALLAHABAD SERIES
leUo;d @ ftykf/kdkjh egksn; -kjk fnukad 31-01-2021 dks
Lohd`fr iznku ugha dh xbZ gS] ftlds QyLo:i fnukad 3108-2020 ds i'pkr muls vkxs dk;Z ugha fy;k x;k gS]
D;ksafd u gh tuin Lrj ij dEI;wVj vkijsVj dk 'kklu
द्वारा in l`ftr gS vkSj u gh Jh 'kqDyk dh fof/kd izfdz;k
1⁄4p;u lfefr1⁄2 ls fu;qfDr dh xbZ gSA

vr% ek0 mPp U;k;ky; bykgkckn esa Jh iz'kkUr
'kqDyk cuke m0iz0 ljdkj ,oa 06 vU; ds uke ls ;ksftr
;kfpdk la0 ,&1936 @ 2021 ds lkFk layXu izR;kosnu
fnukad 25-09-2020 ij dk;Zokgh djus gq;s izR;kosnu dks
,rn~ द्वारा fuLrkfjr fd;k tkrk gSAß

4. It would be relevant to mention that the
petitioner voluntarily and with eyes wide open
entered into an agreement dated 31.3.2020 for
his engagement on honorarium basis @
Rs.11,200/- per month for the specific period of
2.3.2020 to 31.8.2020 (six months) or till
continuation of the scheme, whichever is earlier.
The agreement came to an end on 31.8.2020.
Thereafter, on account of no necessity of
engagement for work, the petitioner-appellant
was not further engaged.

5. Consequently, the petitioner filed Writ -
A No.1936 of 2021 (Prashant Shukla Vs. State
of U.P. & six others) which was disposed of by
order dated 18.3.2021 observing that "without
expressing any opinion on the merits of the issue
the concerned respondent is directed to look into
the grievance of the petitioner and redress the
same strictly in accordance with law."

6. Pursuant to the aforesaid order passed
by learned Single Judge, the representation of
the petitioner was decided by the impugned
order dated 6.5.2021 passed by the Chief
Development Officer, Kannuaj declining to
extend the contractual engagement of the
petitioner or to reengage him.

7. In the order dated 6.5.2021 it has also
been observed that neither post of Computer
Operator has been created by the State
Government at the District Level for work under
Mahatma Gandhi National Rural Employment
Guarantee Scheme (MNREGA) scheme nor the
petitioner-appellant
was
employed
through
lawful selection process.

8. The aforesaid order dated 6.5.2021 was
challenged by the petitioner-appellant in Writ-A
No.6652 of 2021 which has been dismissed by
the abovequoted impugned order passed by
learned Single Judge dated 9.8.2021 observing
that "the Court cannot by way of a writ
command the respondents to either renew or
perpetuate the contractual engagement of the
petitioner. In any case and since it is not
governed by any statutory rules or regulations,
the
Court
cannot
issue
a
declaration
invalidating
the
termination
or
direct
reinstatement."

Aggrieved with this order the petitionerappellant has filed the present special appeal.

Submissions

9. Learned counsel for the petitionerappellant submits that the impugned order has
been passed by the learned Single Judge merely
on the basis of the law laid down by a Division
Bench in Rajesh Bhardwaj Vs. Union of India
and others 2019(2) ADJ 830 whereas the
contrary view has been taken by two different
Division Benches in Special Appeal No.104 of
2021 (Prem Chandra Gupta Vs. State of U.P.
and 4 others) decided on 14.6.2021 and
Jagbhan Vs. State of U.P. and 5 others in
Special Appeal Defective No.250 of 2021
decided on 14.6.2021.

10. Learned counsel for the petitionerappellant has further urged that the judgment in
the csae of Rajesh Bhardwaj (Supra) is liable
to be referred to Larger Bench as it runs counter
to the view taken by two different coordinate
Bench in the case of Jagbhan (Supra) and
Prem Chandra Gupta (Supra).

Learned Standing Counsel supports the
impugned judgement.
11 All. Prashant Shukla Vs. State of U.P. & Ors.
1043

Finding

11. We have carefully considered the
submissions of the learned counsel for the
parties.

12. It is admitted case of the petitioner that
he was engaged for the period from 2.3.2020 to
31.8.2020 on honorarium basis as Computer
Operator under a written agreement dated
31.3.2020 which he entered voluntarily and with
eyes wide open. On expiry of the period of
agreement, his contractual engagement came to
an end. Neither any statutory provision nor any
judgement could be placed by learned counsel
for the petitioner before us, which may indicate
that in absence of legally protected or judicially
enforceable subsisting right, the petitionerappellant has a right to ask for a mandamus from
the writ court to the authorities to compel them
to renew the contract or to extend the period of
engagement by entering into a fresh agreement.

13. The judgment relied by learned counsel
for the petitioner-appellant in the case of
Jagbhan (Supra) has no bearing on the facts of
the present case. The facts in the case of
Jagbhan (Supra) are different inasmuch as in
the case the services of the petitioner were
terminated by an order on the basis of an enquiry
report dated 25.9.2020 without affording any
opportunity of hearing to him. When the said
order of termination was challenged, the learned
Single Judge passed the order dismissing the
writ petition, which is reproduced below:-

"Heard learned counsel for the parties.

This petition at the behest of a contractual
employee aggrieved by an order of termination
would not be maintainable in light of the
decision of the Division Bench in Rajesh
Bhardwaj Vs. Union of India and Others [2019
(2) ADJ 830]. It is accordingly dismissed as
such."

The facts of the case of Prem Chandra
Gupta (Supra) relied by learned counsel for the
petitioner are also similar to the facts of the case
of Jagbhan (Supra).

The order of learned Single Judge, which
was challenged in Special Appeal in the case of
Prem Chandra Gupta (Supra), is reproduced
below:-

"Heard learned counsel for the petitioner
and the learned Standing Counsel.

The Court finds no ground to entertain this
petition directed against an order of termination
of the contractual engagement of the petitioner
bearing in mind the judgment rendered by the
Division Bench of the Court in Rajesh
Bhardwaj Vs. Union of India and Others [2019
(2) ADJ 830]. The writ petition is accordingly
dismissed as not maintainable"

14. Thus, the orders of learned Single
Judge, which were challenged in the case of
Jagbhan (Supra) and Prem Chandra Gupta
(Supra) arose from an ex parte order of
termination of services on the basis of an ex
parte enquiry report and the orders of the learned
Single Judge were not on merit of the case, but it
was simply observed that the writ petition is not
maintainable in the light of the law laid down in
the case of Rajesh Bhardwaj (Supra).

The facts of the present case are entirely
different as the petitioner-appellant herein
entered into a contract voluntarily and with eyes
wide open for his engagement for a fixed period
from 2.3.2020 to 31.8.2020 and on expiry of the
period of agreement, his agreement was not
renewed and he was not re-engaged.

15. Sufficient reasons have been disclosed
in the order dated 6.5.2021 passed by Chief
Development Officer, Kannauj for not extending
the engagement of the petitioner-appellant.
1044 INDIAN LAW REPORTS ALLAHABAD SERIES

16. The writ petition of the petitionerappellant herein was dismissed by the learned
Single Judge not by merely referring to the law
laid down in the case of Rajesh Bhardwaj
(Supra) but it was also held that the Court
cannot by way of a writ command the
respondents to either renew or perpetuate the
contractual engagement of the petitioner. In any
case and since it is not governed by any statutory
rules or regulations, the Court cannot issue a
declaration invalidating the termination or direct
reinstatement.

17. The petitioner-appellant had filed the
aforesaid Writ-A No.6652 of 2021 praying for
(a) to quash the order dated 6.5.2021 and (b) to
issue a writ order or direction in the nature of
mandamus directing the respondents to execute
the agreement reinstating the petitioner as
Computer Operator for MANREGA works in
District Kannauj. We find that the order dated
6.5.2021 does not suffer from any manifest error
of law and as such a writ of certiorari cannot be
issued.

18. The Apex Court in the case of Director,
Institute of Management Development, U.P. Vs.
Smt. Pushpa Srivastava JT 1992 (4) S.C.489 had
the occasion to consider the right of a
contractual employee for re-engagement and
held as under:-

"4. The respondent was first appointed in
the appellant- Institute as a Research Executive
on a consolidated fixed compensation of Rs.
1,250 per month on contract basis for aperiod of
three months. It was specifically stated in the
order that it was purely on ad hoc basis, liable
for termination without any notice on either
side.

5. By an order dated 18th of July, 1988 the
appointment of respondent was exended for a
further period of three months with effect from
2nd August, 1988 on the same terms and
conditions. Here again, it requires to be noted
that the appointment was purely on ad hoc
basis. On 28th of January, 1989 a fresh Office
Order was made appointing the respondent as
Training Executive on a contract basis for a
period of three months. The consolidated pay
was fixed at Rs.1,500 per month. Here also, the
appointment was purely on ad hoc basis and
terminable without notice by either side. On
20th June, 1989 she was appointed on a newly
created post of Executive carrying a pay scale of
Rs. 770-1600. This appointment was also on ad
hoc basis for a period of six months and it was
terminable by one month's notice on either side.
on 5th January, 1990 another ad hoc
appointment was made for a period of three
months.
Though
by
efflux
of
time
the
appointment came to an end on 21st of March,
1990 yet she was continued beyond the
prescribed period.

6. On 13th July, 1990 she submitted a
resignation letter. This letter of resignation was
forwarded to the Director of the Institute who
accepted the same by an order dated 31st July,
1990.

7. Notwithstanding the acceptance of
resignation, on 25th of August, 1990, the
respondent made a further request that her
services might be continued for some more time
in the appellant-institute. On this request, the
respondent was appointed on a contractual
basis as a Training Executive on a consolidated
compensation of Rs.2,400 per month. On this
occasion also, the appointment was purely on a
ad hoc basis terminable without notice.

8. On 3rd of January, 1991 a Committee of
the Institute went into the question of abolition
of redundant posts. The report was submitted by
the Committee to the effect that several posts
including the posts of Training Supervisors and
Research Executive had become redundant.
Therefore, the committee recommended their
abolition. Accepting the report of the committee
on 14th January, 1991 five posts were abolished
including the post of Training Supervisors and
Research Executive with effect from the last
11 All. Prashant Shukla Vs. State of U.P. & Ors.
1045
training programme of the current financial
year.

9. Since the appointment of the respondent
was coming to an end at the end of February
1991 she preferred W.P. 1041 of 1991."

17.For our part, we do not think it is
necessary to decide the question as to who has
the power to abolish the post of Training
Executive; whether under Rule 16(viii), the
Director or under Rule 11, the Board since we
propose to limit the controversy to the terms of
appointment.

18.The order dated 1.9.90 reads as follow :

"1-168D/1132 1.9.90

OFFICE ORDER

With effect from the date of joining Smt.
Pushpa
Rani
Srivastava
is
appointed
a
consolidated fixed pay of Rs. 2400 per month on
contract basis for a period of six months in the
Institute.

The appointment of Smt. Srivastava is
purely on ad hoc basis and is terminable without
any notice.

sd/-

(K.K.N. SINGH) DIRECTOR"

(19) The following are clear from the above
order :

(i) The respondent was appointed on a
contractual basis.

(ii) The post was to carry a consolidated
pay of Rs.2400 per month.

(iii) The duration of appointment was six
months from the date of the respondent joining
charge.

(iv) It is purely on ad hoc basis.

(v) It is terminable without any notice.

20. Because the six months' period was
coming to an end on 28th February, 1991, she
preferred the Writ petition a few days before and
prayed for mandamus which was granted by the
learned Judge under the impugned judgment.
The question is whether the directions are valid
in law. To our mind, it is clear that where the
appointment is contractual and by efflux of
time, the appointment comes to an end, the
respondent could have no right to continue in
the post. Once this conclusion is arrived at,
what requires to be examined is, in view of the
services of the respondent being continued
from time to time on `ad hoc' basis for more
than a year whether she is entitled to
regularisation? The answer should be in the
negative.

23. In the instant case, there is no such
rule. The appointment was purely ad hoc and
on a contractual basis for a limited period.
Therefore, by expiry of the period of six
months, the right to remain in the post comes
to an end. (Emphasis supplied by us)

9. Further in the case of Secretary, State
Of Karnataka and others vs Umadevi And
Others (2006) 4 SCC 1, the Hon'ble Supreme
Court has held as under:-

"When a person enters a temporary
employment or gets engagement as a
contractual or casual worker and the
engagement is not based on a proper
selection as recognized by the relevant rules
or
procedure,
he
is
aware
of
the
consequences of the appointment being
temporary, casual or contractual in nature.
Such a person cannot invoke the theory of
legitimate expectation for being confirmed in
the post when an appointment to the post
could be made only by following a proper
procedure for selection and in concerned
cases, in consultation with the Public Service
Commission.
Therefore,
the
theory
of
legitimate expectation cannot be successfully
advanced by temporary, contractual or casual
employees. It cannot also be held that the
State has held out any promise while engaging
these persons either to continue them where
they are or to make them permanent. The State
cannot constitutionally make such a promise.
It is also obvious that the theory cannot be
invoked to seek a positive relief of being made
permanent in the post."
1046 INDIAN LAW REPORTS ALLAHABAD SERIES

20. It is also settled law that a writ of
mandamus can be issued if a petitioner is able to
establish that he has legally protected and
judicially enforceable subsisting right. The
petitioner has completely failed to demonstrate
that he has any statutory or legal right to compel
the respondents to execute an agreement for his
re-engagement
or
further
engagement
as
Computer Operator for MANREGA in District
Kannauj.

21. In Director of Settlement, A.P. Vs.
M.R. Apparao (2002) 4 SCC 638 (para 17)
Hon'ble Supreme Court considered the High
Court's power for issuance of mandamus and
held as under :-

"17. Coming to the third question, which is
more important from the point of consideration
of High Court's power for issuance of
mandamus, it appears that the constitution
empowers the High Court to issue writs,
directions or orders in the nature of habeas
corpus, mandamus, prohibition, quo warranto
and certiorari for the enforcement of any of the
rights conferred by Part III and for any other
purpose under Article 226 of the Constitution of
India. It is, therefore essentially, a power upon
the High Court for issuance of high prerogative
writs for enforcement of fundamental rights as
well as non-fundamental or ordinary legal
rights, which may come within the expression
'for any other purpose'. The powers of the High
Courts
under
Article
226
though
are
discretionary and no limits can be placed upon
their discretion, they must be exercised along
recognised lines and subject to certain selfimposed limitations. The expression 'for any
other purpose' in Article 226, makes the
jurisdiction of the High Courts more extensive
but yet the Court must exercise the same with
certain restraints and within some parameters.
One of the conditions for exercising power
under Article 226 for issuance of a mandamus is
that the Court must come to the conclusion that
the aggrieved person has a legal right, which
entitles him to any of the rights and that such
right has been infringed. In other words,
existence of a legal right of a citizen and
performance of any corresponding legal duty by
the State or any public authority, could be
enforced by issuance of a writ of mandamus.
"Mandamus" means a command. It differs from
the writs of prohibition or certiorari in its
demand for some activity on the part of the body
or person to whom it is addressed. Mandamus is
a command issued to direct any person,
corporation, inferior Courts or Government,
requiring him or them to do some particular
thing therein specified which appertains to his
or their office and is in the nature of a public
duty. A mandamus is available against any
public authority including administrative and
local bodies, and it would lie to any person who
is under a duty imposed by statute or by the
common law to do a particular act. In order to
obtain a writ or order in the nature of
mandamus, the applicant has to satisfy that he
has a legal right to the performance of a legal
duty by the party against whom the mandamus is
sought and such right must be subsisting on the
date of the petition.{Kalyan Singh vs. State of
U.P., AIR 1962 SC 1183}. The duty that may be
enjoined by mandamus may be one imposed by
the Constitution, a statute, common law or by
rules or orders having the force of law. When
the aforesaid principle are applied to the case in
hand, the so-called right of the respondents,
depending upon the conclusion that the
amendment Act is constitutionally invalid and,
therefore, the right to get interim payment will
continue till the final decision of the Board of
Revenue cannot be sustained when the Supreme
Court itself has upheld the constitutional validity
of the amendment Act in Venkatagiri's case
(2002) 4 SCC 660 on 6.2.1986 in Civil Appeal
Nos. 398 & 1385 of 1972 and further declared
in the said appeal that interim payments are
payable till determination is made by the
Director under Section 39(1). The High Court in
11 All. Hari Om Saran Srivastava Vs. State of U.P. & Ors.
1047
exercise of power of issuance of mandamus
could not have said anything contrary to that on
the ground that the earlier judgment in favour of
the respondents became final, not being
challenged. The impugned mandamus issued by
the Division Bench of the Andhra Pradesh High
Court in the teeth of the declaration made by the
Supreme Court as to the constitutionality of the
amendment Act would be an exercise of power
and jurisdiction when the respondents did not
have the subsisting legally enforceable right
under the very Act itself. In the aforesaid
circumstances, we have no hesitation to come to
the conclusion that the High Court committed
serious error in issuing the mandamus in
question for enforcement of the so-called right
which never subsisted on the date, the Court
issued the mandamus in view of the decision of
this Court in Venkatagiri's case. In our view,
therefore, the said conclusion of the High Court
must be held to be erroneous."

22. A Division Bench of this Court in
which one of us (Justice Surya Prakash
Kesarwani) is one of the member, had
considered the power of the High Court for
issuance
of
high
prerogative
writ
for
enforcement of fundamental rights, and held as
under:-

"18. It is settled law that writ of mandamus
can be issued if the petitioner has a legal right
to the performance of a legal duty by the party
against whom the mandamus is sought and such
right must be subsisting on the date of the
petition. Similar view has also been taken by
Hon'ble Supreme Court in Kalyan Singh vs.
State of U.P.13. Applying the principles of
issuance of writ of mandamus on the facts of the
present case, we find that the petitioners have no
legal right for protection on the facts of the
present case inasmuch as such the protection as
being asked, may amount to protection against
commission of offence under Section 494/495
I.P.C. It is well settled law that writ of
mandamus can not be issued contrary to law or
to defeat a statutory provision including penal
provision. The petitioners do not have legally
protected and judicially enforceable subsisting
right to ask for mandamus."

Therefore, the learned Single Judge has not
committed any error of law in dismissing the
writ petition by refusing to issue mandamus as
prayed for.

23. It is also well settled law that this Court
in exercise of its extraordinary, equitable and
discretionary jurisdiction under Article 226 of
the Constitution of India has no power to rewrite contract or to compel the State to enter into
an agreement.

24. For all the reasons aforestated, we do
not find any merit in this special appeal.
Consequently, the Special Appeal is dismissed.
----------
(2021)12ILR A1047
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.10.2021

BEFORE

THE HON'BLE SURYA PRAKASH KESARWANI, J.
THE HON'BLE VIKAS BUDHWAR, J.

Spl. Appl. No. 1552 of 2012

Hari Om Saran Srivastava ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Yogesh Kumar Saxena, Sri Siddhartha Srivastava

Counsel for the Respondents:
C.S.C.

A. Service Law - Education - Superannuation -
Extension - Uttar Pradesh High School and
Intermediate College (Payment and Salary to
Teachers and other Employees) Act, 1971 - U.P.
Intermediate Education Act, 1921 - Regulation