# Prem Chandra and others v. State of U.P. and others

- **Citation:** (2011) 1 ILRA 200
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-02-22
- **Case number:** Civil Misc. Writ Petition No. 22624 of 1993
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-chandra-and-others-v-state-of-u-p-and-others-41835
- **Pages:** 3

## Headnote

Constitution
of
India
Article
226Principle of merger-explained-Petitioner
a Daily wager seeking regularizationworking on strength of interim order-in
absence of provision or scheme for
regularization-No final relief could be
granted interim order discharged-No
case
for
Regularization-violation
of
industrial
dispute
Act
provisions-
complete procedure provided in Act
itself-not
before
writ
Court-Petition
Dismissed.

Held Para 5 and 7

Admittedly the petitioners are daily
wage employees and have no right to
hold the post or continue in service. On
the date when impugned order was
passed
disengaging
the
petitioners,
there was no provision under which
petitioners
could
have
claimed
regularisation and none has been shown
before this Court.

The
question
whether
termination
amounts to retrenchment or not requires
investigation into several questions of
fact and it is now well settled that if
some right is claimed under labour
legislation and if the legislation also
contain adjudicatory forum, the remedy
lie there and not by filing writ petition.
In the case of contractual appointment,
the remedy lies elsewhere, but no relief
of reinstatement can be granted in view
of the provisions of Specific Relief Act as
also this Court's judgement in Special
Appeal No. 1906 of 2008 (Brij Bhushan
Singh and another Vs. State of U.P. and
others) decided on 19.12.2008.
Case law discussed:
2007 (2) ESC 987, AIR 1968 Allahabad 139,
AIR 1975 Allahabad 280, 1986 (4) LCD 196,
AIR 1994 Allahabad 273, JT 2009 (2) SC 520,
Special Appeal No. 1906 of 2008

## Text

200 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

(5) Respondent No.1 however shall
be at liberty to recover the amount of
interest and cost paid to petitioner under
this order from the official(s) concerned,
who is/are found responsible for extra
ordinary delay in payment of retiral
benefits to the petitioner, after such inquiry
as is required in law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.02.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 22624 of 1993

Prem Chandra and others ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri K.K. Misra
Sri Prabhakar Singh
Sri Puneet Khare

Counsel for the Respondents:
C.S.C.

Constitution
of
India
Article
226Principle of merger-explained-Petitioner
a Daily wager seeking regularizationworking on strength of interim order-in
absence of provision or scheme for
regularization-No final relief could be
granted interim order discharged-No
case
for
Regularization-violation
of
industrial
dispute
Act
provisions-
complete procedure provided in Act
itself-not
before
writ
Court-Petition
Dismissed.

Held Para 5 and 7

Admittedly the petitioners are daily
wage employees and have no right to
hold the post or continue in service. On
the date when impugned order was
passed
disengaging
the
petitioners,
there was no provision under which
petitioners
could
have
claimed
regularisation and none has been shown
before this Court.

The
question
whether
termination
amounts to retrenchment or not requires
investigation into several questions of
fact and it is now well settled that if
some right is claimed under labour
legislation and if the legislation also
contain adjudicatory forum, the remedy
lie there and not by filing writ petition.
In the case of contractual appointment,
the remedy lies elsewhere, but no relief
of reinstatement can be granted in view
of the provisions of Specific Relief Act as
also this Court's judgement in Special
Appeal No. 1906 of 2008 (Brij Bhushan
Singh and another Vs. State of U.P. and
others) decided on 19.12.2008.
Case law discussed:
2007 (2) ESC 987, AIR 1968 Allahabad 139,
AIR 1975 Allahabad 280, 1986 (4) LCD 196,
AIR 1994 Allahabad 273, JT 2009 (2) SC 520,
Special Appeal No. 1906 of 2008

(Delivered by Hon'ble Sudhir Agarwal, J. )

1. The petitioners are seeking a
mandamus commanding the respondents
to allow them to continue in service and
regularise them.

2.

Learned
counsel
for
the
petitioners contended that though they
have continued pursuant to interim order
dated 28.06.1993 passed by this Court yet
since subsequently Regularisation Rules
have been framed and they are entitled to
be
considered
for
regularisation
thereunder hence their continuous service
till date is liable to be taken into
consideration to consider whether they
have a right for regularisation or not.

3. The submission is thoroughly
misconceived. Admittedly, the petitioners
were disengaged from their daily wage
1 All] Prem Chandra and others V. State of U.P. others
201
muster role employment by means of the
impugned
order.
Counsel
for
the
petitioners
could
not
make
any
submission to assail the said order of
termination. The order of termination was
made ineffective by means of the interim
order passed by this Court. Meaning
thereby continuance of petitioners in
service is not based on their own rights
but pursuant to this Court's order. The law
is well settled in this regard that act of
Court shall prejudice none and anything
which has been done pursuant to interim
order shall depend on the final result of
the writ petition. In case the writ petition
fails it will result as if no interim order
was ever passed. This issue has been
considered by a Division Bench of this
Court (in which I was also a member) in
Smt.
Vijay
Rani
Vs.
Regional
Inspectress of Girls Schools, Region-1,
Meerut and others, 2007(2) ESC 987
and the Court held as under:

"An interim order passed by the Court
merges with the final order and, therefore,
the result brought by dismissal of the writ
petition is that the interim order becomes
non est. A Division Bench of this court in
Shyam Lal Vs. State of U.P. AIR 1968
Allahabad 139, while considering the effect
of dismissal of writ petition on interim order
passed by the court has laid down as under:

"It is well settled that an interim order
merges in the final order and does not exist
by itself. So the result brought about by an
interim order would be non est in the eye of
law if the final order grants no relief. The
grant of interim relief when the petition was
ultimately dismissed could not have the
effect to postponing implementation of the
order of compulsory retirement. It must in
the circumstances take effect as if there was
no interim order."

The
same
principal
has
been
reiterated in the following cases:

(A )AIR 1975 Allahabad 280 Sri
Ram Charan Das V. Pyare Lal.

"In Shyam Lal Vs. State of U.P., AIR
1968 All 139 a Bench of this Court has
held that orders of stay of injunction are
interim orders that merge in final orders
passed in the proceedings. The result
brought about by the interim order
becomes non est in the eye of law in final
order grants no relief. In this view of the
matter it seems to us that the interim stay
became non est and lost all the efficacy,
the commissioner having upheld the
permission which became effective from
the date it was passed."

(B) 1986 (4) LCD 196 Shyam
Manohar Shukla V. State of U.P.

"It is settled law that an interim
order passed in a case which is ultimately
dismissed is to be treated as not having
been passed at all (see Shyam Lal V. State
of Uttar Pradesh) Lucknow, AIR 1968
Allahabad 139 and Sri Ram Charan Das
v. Pyare Lal, AIR 1975 Allahabad 280
(DB)."

C)
AIR
1994
Allahabad
273
Kanoria Chemicals & Industries Ltd. v.
U.P. State Electricity Board.

"After the dismissal of the writ
petitions
wherein
notification
dated
21.4.1990 was stayed, the result brought
about by the interim orders staying the
notification, became non est in the eye of
law and lost all its efficacy and the
notification became effective from the
beginning."
202 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

4. Recently also in Raghvendra
Rao etc. Vs. State of Karnataka and
others, JT 2009 (2) SC 520 the Apex
Court has observed:

"It is now a well-settled principle of
law that merely because an employee had
continued under cover of an order of
Court, he would not be entitled to any
right to be absorbed or made permanent
in the service. ............."

5. Admittedly the petitioners are
daily wage employees and have no right
to hold the post or continue in service. On
the date when impugned order was passed
disengaging the petitioners, there was no
provision under which petitioners could
have claimed regularisation and none has
been shown before this Court.

6.

Learned
counsel
for
the
petitioners
however
submitted
that
disengagement amounts to retrenchment
and as such has violated the procedure
prescribed in U.P. Industrial Disputes Act,
1947, hence the termination is illegal.

7. The question whether termination
amounts to retrenchment or not requires
investigation into several questions of fact
and it is now well settled that if some
right is claimed under labour legislation
and if the legislation also contain
adjudicatory forum, the remedy lie there
and not by filing writ petition. In the case
of contractual appointment, the remedy
lies
elsewhere,
but
no
relief
of
reinstatement can be granted in view of
the provisions of Specific Relief Act as
also this Court's judgement in Special
Appeal No. 1906 of 2008 (Brij Bhushan
Singh and another Vs. State of U.P. and
others) decided on 19.12.2008.

8. In view thereof I find no merit in
the writ petition. Dismissed. Interim order,
if any, stands vacated.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.02.2011

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 32436 of 2001

Nagar Panchayat Sahabad,Rampur

 ...Petitioner
Versus
Chunnu Khan and others ...Respondents

Counsel for the Petitioner:
Sri Anurag Pandey
Sri D.V.Jaiswal

Counsel for the Respondents:
C.S.C.

U.P.Z.A.L.R. Act-Section 142-user of land
for Hat-market by Bhumidhar-possessing
due license-challenged on ground it falls
within Nagar Palika limit-hence private
Respondents have no right-from perusal
of
record
plot
in
question
beyond
territorial limit of petitioner-no rights or
privilege of recorded Bhumidhar can be
curtailed-petition dismissed

Held: Para 10

Apart from this, the evidence adduced
indicates
that
the
contesting
respondents, in accordance with the Zila
Parishad
Adhiniyam,
had
obtained
licence from the Zila Parishad upon
payment of the requisite fee. Thus on all
scores the order dated 8.5.92 cannot be
said to be suffering from any infirmity.
Case law discussed:
1976 RD 109; AIR 1931 Oudh 110; AIR 1961
SC SC=1969 R.D.288; 1998 (3) AWC 1629;