# Raj Kumar Yadav v. The State of U.P. and others

- **Citation:** (2008) 2 ILRA 560
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-05-07
- **Bench:** Dr. B.S. Chauhan, R.D. Khare
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kumar-yadav-v-the-state-of-u-p-and-others-41216
- **Pages:** 7

## Headnote

of Services) Rules 1975-terminationwith stipulation no longer requirement of
services-appointment
purely
on
temporary
basis
under
Rule
1975without
putting
stigma-held-propertemporary employee has no right to hold
the
post-another
question
regarding
automatic confirmation after completion
of
probation
period-in
absence
of
appointment letter-period of probation
can not be specified-even if period
specified-No
automatic
confirmationheld-termination order perfectly valid.

Held: Para 22 & 30

In the instant case, the order impugned
dated 14.09.1998 by which the services
of the petitioner-appellant had been
terminated, reveal that the petitioner
appellant
had
been
appointed
on
temporary basis under the provisions of
the
U.P.
Government
Servants
(Termination of services) Rules, 1975.
This case is squarely covered by the
judgement of the Hon'ble Supreme Court
in Kaushal Kishore Shukla (supra).

In view of the above, the appeal lacks
merit and is accordingly dismissed.
Case Law discussed:
AIR 1992 SC 496; (1994) 5 SCC 177; (1994) 5
SCC 180; (1995) 1 SCC 638; AIR 1994 SC
1558; 1971 (2) All E.R. 1278; AIR 1992 SC
1593; AIR 1997 SC 2126; (1997) 2 SCC 534;
JT 2000 (10) SC 199; AIR 2001 SC 102; AIR
1991 SC 1145; AIR 1992 SC 677; (1998) 5
SCC 450; (2001) 10 SCC 83; AIR 2003 SC 923;
AIR 2003 SC 1175;. (2003) 3 SCC 485; (1994)
2 SCC 630; (1987) Supp. SCC 497; (1997) 3
SCC 194; (1996) 8 SCC 454; AIR 1992 SC
2070; AIR 1995 SC 768; 1987 Supp SCC 497;
1998 Supp SCC 428; AIR 1992 SC 2130; A.I.R.
1968 SC 1210; AIR 1985 SC 603; AIR 1986 SC
1844; AIR 1988 SC 286; 1996 FLR 258; 1994
Lab.I.C. 859; 1995 Suppl (3) SCC 364; AIR
1996 SC 750; AIR 1996 SC 2093; (1997) 7
SCC 443; AIR 1962 SC 1711; AIR 1966 SC
175; AIR 1966 SC 1842., (2008) SCC 653.

## Text

560 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.05.2008

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE R.D. KHARE, J.

Special Appeal 531 of 2002

Raj Kumar Yadav

...Applicant
Versus
The State of U.P. & others ...Respondents

Counsel for the Applicant:
Sri. H.S.N. Tripathi
Sri. S.K. Pandey
Counsel for the Respondents:
S.C.

U.P. Government Servant (Termination
of Services) Rules 1975-terminationwith stipulation no longer requirement of
services-appointment
purely
on
temporary
basis
under
Rule
1975without
putting
stigma-held-propertemporary employee has no right to hold
the
post-another
question
regarding
automatic confirmation after completion
of
probation
period-in
absence
of
appointment letter-period of probation
can not be specified-even if period
specified-No
automatic
confirmationheld-termination order perfectly valid.

Held: Para 22 & 30

In the instant case, the order impugned
dated 14.09.1998 by which the services
of the petitioner-appellant had been
terminated, reveal that the petitioner
appellant
had
been
appointed
on
temporary basis under the provisions of
the
U.P.
Government
Servants
(Termination of services) Rules, 1975.
This case is squarely covered by the
judgement of the Hon'ble Supreme Court
in Kaushal Kishore Shukla (supra).

In view of the above, the appeal lacks
merit and is accordingly dismissed.
Case Law discussed:
AIR 1992 SC 496; (1994) 5 SCC 177; (1994) 5
SCC 180; (1995) 1 SCC 638; AIR 1994 SC
1558; 1971 (2) All E.R. 1278; AIR 1992 SC
1593; AIR 1997 SC 2126; (1997) 2 SCC 534;
JT 2000 (10) SC 199; AIR 2001 SC 102; AIR
1991 SC 1145; AIR 1992 SC 677; (1998) 5
SCC 450; (2001) 10 SCC 83; AIR 2003 SC 923;
AIR 2003 SC 1175;. (2003) 3 SCC 485; (1994)
2 SCC 630; (1987) Supp. SCC 497; (1997) 3
SCC 194; (1996) 8 SCC 454; AIR 1992 SC
2070; AIR 1995 SC 768; 1987 Supp SCC 497;
1998 Supp SCC 428; AIR 1992 SC 2130; A.I.R.
1968 SC 1210; AIR 1985 SC 603; AIR 1986 SC
1844; AIR 1988 SC 286; 1996 FLR 258; 1994
Lab.I.C. 859; 1995 Suppl (3) SCC 364; AIR
1996 SC 750; AIR 1996 SC 2093; (1997) 7
SCC 443; AIR 1962 SC 1711; AIR 1966 SC
175; AIR 1966 SC 1842., (2008) SCC 653.

(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. This Special Appeal has been
filed against the impugned judgment and
order dated 22.04.2002 passed by the
learned Single Judge by which he has
rejected the claim of the petitioner on the
ground that he was merely a temporary
employee and has no right to hold the
post. The learned Single Judge further
held that even if a person is appointed on
probation and unless an order in writing is
passed for confirmation and he is
continuing beyond the period of probation
provided under the rules, he would not be
deemed
to
have
been
confirmed
automatically,
merely
because
the
probation period is over.

2. The facts and circumstances
giving rise to this case are that the
petitioner-appellant was appointed as a
Constable
in
Provincial
Arms
Constabulary
(hereinafter
called
the
'P.A.C.') on temporary basis. No order of
confirmation had ever been passed. The
services of the petitioner-appellant were
terminated after working for about seven
2 All] Raj Kumar Yadav V. The State of U.P. and others
561
years on the ground that his services were
no longer required, vide order dated
14.09.1998.
Being
aggrieved,
the
petitioner-appellant filed Writ Petition
No. 42766 of 1998, which has been
dismissed by the order impugned dated
22.04.2002. Hence the present Special
Appeal.

3. It has been submitted by the
learned
counsel
for
the
petitionerappellant that under no circumstance, the
petitioner-appellant could be removed
from service merely on the ground that
his services were no longer required, even
if he was holding the post on temporary
basis. Secondly, it has been submitted by
the learned counsel for the appellant that
the
petitioner-appellant
had
been
appointed on probation, though no
confirmation order had been passed, he
would be deemed to have been confirmed
after the period of confirmation was over.

4. Learned Standing Counsel
appearing
for
the
respondents
has
vehemently oposed the Special Appeal
contending that the petitioner-appellant
could not claim any right on the post and
if his services were no longer required, he
had rightly been removed. More so, if he
was appointed on probation period and
had not been confirmed after the expiry of
the period of probation, that does not
mean that he was deemed to have been
confirmed. Therefore, he submitted that
the appeal lacks merit and is liable to be
dismissed.

5. We have considered the rival
submissions made by learned counsel for
the parties and perused the record.

6. It is settled legal propositions that
the person, who has been appointed on ad
hoc basis with the conditions stipulated in
his appointment letter, his services could
be terminated in terms of the appointment
letter The petitioner does not, have a right
to claim any relief if his services are
terminated in terms of the letter of
appointment.

7. In State of U.P. & ors. Vs.
Kaushal Kishore Shukla, 1991 (1) SCC
691, the Apex Court has categorically
held as under:-

"Under the service jurisprudence a
temporary employee has no right to hold
the post and his services are liable to be
terminated
in
accordance
with
the
relevant service rules and the terms of
contract of service."

8. In a case like the instant, the
Court has to be satisfied as what is the
legally justiceable right of the petitioner
which has been infringed and for which
the
petitioner
can
resort
to
the
discretionary relief under Article 226 of
the Constitution of India. The Supreme
Court in Parshotam Lal Dhingra Vs.
Union of India, AIR 1958 SC 36, has held
that" A person can be said to acquire a
lien on a post only when he has been
confirmed and made permanent on that
post and not earlier" and further held that"
a Government servant holding a post
temporarily does not have any right to
hold the said post." In R.K Misra Vs. U.P.
State Handloom Corporation, AIR 1987
SC 2408, the Apex Court has taken the
same view.

9. A temporary employee has no
right to hold the post and his services are
liable to be terminated without assigning
any reason either under the terms of the
contract providing for such termination or
562 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
under
the
relevant
statutory
rules
regulating the terms and conditions of
temporary servants. Similarly, in Triveni
Shankar Saxena Vs. State of U.P. & ors.,
AIR 1992 SC 496; Commissioner of Food
& Civil Supplies Vs. Prakash Chandra
Saxena, (1994) 5 SCC 177: Ram Chandra
Tripathi Vs. U.P. Public Services Tribunal
& Ors., (1994) 5 SCC 180; (i) Madhya
Pradesh Hast Shilpa Vikas Nigam Ltd.
Vs. Devendra Kumar Jain & Anr., (1995)
1 SCC 638; and Kaushal Kishore Shukla
(supra), the Apex Court has categorically
held that incumbent to a post who has
been given appointment on temporary
basis, terminable without notice, has no
right to hold the post and he is not entitled
for any opportunity of hearing before his
services are dispensed with as his
termination does not amount to forfeiture
of any legal right.

10. In Ravi S. Naik Vs. Union of
India, AIR 1994 SC 1558, the Hon'ble
Apex Court held that in such cases even
principles of natural justice do not require
to be observed. The Court placed reliance
on the observations made in Malloch Vs.
Aberdeen Corporation, 1971 (2) All E.R.
1278, wherein it has been observed as
under:-

"A breach of procedure, whether
called a failure of natural justice or an
essential administrative fault cannot give
him a remedy in the courts, un-less behind
it there is something of substance which
has been lost by the failure. The Court
does not act in vain."

11. In Life Insurance Corporation of
India Vs. Raghavendra Seshagiri Rao
Kulkarni, (1997) 8 SCC 461, the Apex
Court explained the difference of a
permanent employee and an employee
holding the post on probation and held
that the services of a probationer cannot
be equated with that of a permanent
employee who, on account of his status, is
entitled to be retained in service and his
services cannot be terminated abruptly
without any notice or plausible cause.
"This is based on the principle that a
substantive appointment to a permanent
post
in
a
public
service
confers
substantive right to the post and the
person appointed on that post becomes
entitled to hold a lien on that post."
However,
innterpreting/enforcing
the
terms of appointment which provided for
discharge of the said probationer from
service at any time during the period of
probation or extended period of probation,
without any notice or without assigning
any cause, the Court held that as his
termination was. in consonance with the
terms and conditions of his appointment
letter, he cannot be heard raising
grievance.

12. In State of Punjab & ors. Vs.
Surindra Kumar & ors. AIR 1992 SC
1593, the Apex Court has held that the
court must seek the adherence to the
terms and conditions of the appointment
and there is no reason why terms and
conditions of appointments cannot be
enforced in a contract of service.

13. In Hindustan Education Society
& Anr. Vs. SK Kalim SK Gulam Nabi,
AIR 1997 SC 2126, the Apex Court has
held that where the rules specifically
provide for permanent appointment on
probation for a specific period and an
employee is appointed without stipulating
any condition regarding probation, the
inference is to be drawn that he was not
appointed in substantive capacity. In
Avinash Nagra Vs. Navodaya Vidyalaya
2 All] Raj Kumar Yadav V. The State of U.P. and others
563
Samiti & ors., (1997) 2 SCC 534, the
Apex Court has held that a society can
terminate the services not only of a
temporary employee but also of a
permanent employee by giving him one
month's notice or three months' pay and
allowances in lieu thereof if the terms of
appointment and rules so permit and such
termination may be valid in a given cases
even if the principles of natural justice
have not been complied with.

14. In Chandradeo Gautam Vs. State
of U.P. & ors., JT 2000 (10) SC 199 the
Hon'ble Supreme Court held that the
termination of services of temporary
employee does not require interference on
being removed on any ground as it does
not cast any stigma or aspersion on him.
In Nazira Begum Lashkar & ors. Vs. State
of Assam, AIR 2001 SC 102, the Apex
Court held that where appointment neither
confers any right nor any equity in favour
of the employee, as the appointment was
purely temporary and could be terminated
without notice, no grievance can be
entertained by such employee. More so,
he cannot claim any equitable relief from
any Court.

15. Similar view has been reiterated
in Ramakant Shripad Sinai Advalpalkar
Vs. Unio of India & ors., AIR 1991 SC
1145; K.S.P. College Stop-Gap Lecturers
Association Vs. State of Karnataka, AIR
1992 SC 677; Punjab State Electricity
Board;and anr. Vs. Baklev Singh, (1998)
5 SCC 450; A.P. State Federation of
Coop. Spinning Mills Ltd. & Anr. Vs.
P.V. Swaminathan, (2001) 10 SCC 83;
Union of India Vs. A.P. Bajpai, AIR 2003
SC
923;
&
Dhananjay
Vs.
Chief
Executive Officer Zila Parishad, AIR
2003 SC 1175.

16. It has further been held in these
cases that termination of the services of
the temporary employees under the
relevant Rules does not cast any stigma
and it remains termination simplicitor.

17. In Dr. Chanchal Goyal (Mrs.)
Vs. State of Rajasthan, (2003) 3 SCC 485,
the Apex Court held that a person
appointed on a tenure post or temporarily
or on ad-hoc basis does not have right to
hold the post even if the person who has
regularly been appointed has not joined
the post for the reason that the person next
to him or from the waiting list in the
regular selection would have a right to
join the post and in all circumstances, a
temporary or ad hoc employee has to
vacate the post so that the regular selected
candidate may join. Even if an employee
continued for a long-time, that does not
crystallize into any enforceable right nor
such an employee can claim any lien over
the said post unless he stands regularized..
While deciding the said case, a very
heavy reliance had been placed on the
earlier judgments in Jammu & Kashmir
Public Service Commission & Ors. Vs.
Dr. Narinder Mohan & Ors., (1994) 2
SCC 630; & Dr. A.K. Jain & Ors. Vs.
Union Of India & Ors., (1987) Supp. SCC
497.

18. In Union of India & Ors. Vs.
Harish Balkrishna Mahajan, (1997) 3
SCC 194, the Apex Court reiterated the
law laid down in State of U.P. & Ors. Vs.
Dr. Deep Narain Tripathi & Ors., (1996) 8
SCC
454,
observing
that
mere
continuation for long time by an ad hoc or
temporary employee does not give him
any legal right to hold the post.

19. In Nazira Begum Lashkar
(supra), the Apex Court held that
564 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
temporary or ad hoc appointment does not
confer any legal right nor such an
appointee can claim equity in his favour
nor the equitable relief can be granted to
him by the Court. Even if, he has worked
for
unusual
long
period, even on
humanitarian considerations.

20. A person holding .the post of
temporary/ad hoc post is not a member of
service in accordance with the statutory
rules, therefore, he cannot have any right
vested in the post. (Vide P.D. Aggarwal &
ors. Vs. State of U.P. & ors., AIR 1987
SC 1676). Similar view has been
reiterated in cases where the person was
holding the tenure post by the Hon'ble
Apex Court observing that by efflux of
time appointment comes to an end
automatically on expiry of the tenure of
appointment, and such appointee cannot
claim any relief either on the basis of
equity, or human consideration, or in law.
(Vide Director, Institute of Management
Development, U.P. Vs. Smt Pushpa
Srivastava, AIR 1992 SC 2070; and State
of U.P. Vs. Dr S.K. Sinha, AIR 1995 SC
768). The only relief/protection in law an
ad hoc appointee can claim is that he
should not be replaced by another ad hoc
as held by the Hon'ble Apex Court in Dr.
A.K. Jain Vs. Union of India & ors., 1987
Supp SCC 497; Rajbinder Vs. State of
Punjab & ors. 1998 Supp SCC 428; and
State of Haryana Vs. Piara Singh, AIR
1992 SC 2130.

21. Therefore, the law on the issue
can be summarised as under:-

"An ad hoc appointment means a
stop gap arrangement. The appointment is
defeasible, and thus, incapable to create
any legal right in favour of the appointee
for the reason that such an appointment is
made in administrative exigency, pending
regular appointment, in public interest. As
ad hoc appointment is made in public
interest considering the administrative
necessity, temporarily, or to meet a
temporary
necessity
for
a
specific
purpose, an ad hoc appointee cannot have
any grievance whatsoever as he is not
deprived of any right or interest vested in
the post. He cannot claim to be a member
of the service in accordance with the
rules. The only protection law gives to an
ad hoc appointee is, not to be replaced by
another ad hoc appointee. Thus, he has to
make accommodation to the regular
appointee whenever he comes to join."

22. In the instant case, the order
impugned dated 14.09.1998 by which the
services of the petitioner-appellant had
been terminated, reveal that the petitioner
appellant
had
been
appointed
on
temporary basis under the provisions of
the
U.P.
Government
Servants
(Termination of services) Rules, 1975.
This case is squarely covered by the
judgement of the Hon'ble Supreme Court
in Kaushal Kishore Shukla (supra).

23. So far as the second issue is
concerned, the appellant has not placed
.the order of appointment and even if it is
assumed that he was appointed on
probation, he cannot be deemed to have
been confirmed after the period of
probation was over in the absence of any
order of confirmation is passed.

24. The law on the issue is well
settled that the question of deemed
confirmation would arise provided there
is a complete embargo to extend the
period of probation. If an employee is not
confirmed
by
specific
order
of
confirmation, he shall not be deemed to
2 All] Raj Kumar Yadav V. The State of U.P. and others
565
have been confirmed automatically. This
law has been laid down by a Constitution
Bench of the Hon'ble Supreme Court in
The State of Punjab vs Dharam Singh,
A.I.R. 1968 SC 1210.

25. Similar view has been reiterated
by the Hon'ble Supreme Court in
Dhanjibhai
Ramjibhai
Vs.
State
of
Gujarat, AIR 1985 SC 603; Om Prakash
Maurya Vs. U.P. Cooperative Sugar
Factories Federation, Lucknow, AIR 1986
SC 1844; M.K. Agrawal Vs. Gurgaon
Gramin Bank & Ors AIR 1988 SC 286;
Mool Chand Vs. U.P. Food Corporation
& Anr., 1996 FLR 258; Sri Chandra Vs.
U.P. Financial Corporation, 1994 Lab.I.C.
859; Jai Kishan Vs. Commissioner of
Police & Anr., 1995 Suppl (3) SCC 364;
Satya Narayan Athya Vs. High Court of
Madhya Pradesh & Anr., AIR 1996 SC
750; and State of Punjab Vs. Baldev
Singh Khosla, AIR 1996 SC 2093.

26. In Dayaram Dayal Vs. State of
M.P. & Anr., (1997) 7 SCC 443, a similar
view has been reiterated observing that
the deemed confirmation of a probationer
depends on the order of appointment and
the rules applicable in the case of said
employee. Mere continuance in service of
an employee beyond the maximum period
up to which the probation period could be
extended, shall not give entitlement to
him to have been deemed confirmed.
While decide the said case, the Hon'ble
Supreme Court considered its earlier
judgment in Sukhbans Singh Vs. State of
Punjab, AIR 1962 SC 1711 wherein it
was held as under:-

"A
probationer
cannot.......
automatically acquire the status of a
permanent member of a service, unless of
course the rules under which he is
appointed expressly provide for such a
result. The rules governing the Provincial
Civil Services of Punjab do not contain
any provision whereby a probation at the
end of the probationary period is
automatically absorbed as a permanent
member of the Civil Service."

27. The Supreme Court also
considered
the
Constitution
Bench
Judgement of the Honb'le Supreme Court
in
G.S.
Ramaswamy
Vs.
Inspector
General of Police AIR 1966 SC 175; and
State of U.P. Vs. Akbar Ali Khan, AIR
1966 SC 1842.

28. In C.V. Satheeshchandran Vs.
General Manager, UCO Bank & Ors.,
(2008) SCC 653, the Hon'ble Supreme
Court held that merely because the
probation period is over his service cannot
be deemed to have been confirmed as it
require
specific
order
directing
confirmation and it will be only in special
circumstances where the rules specifically
provides for deemed confirmation, he will
not be considered to have been confirmed.

29. In the instant case, the learned
counsel for the appellant has not produced
the relevant rules applicable in the case of
the petitioner-appellant. Therefore, no
finding can be recorded on the issue.

30. In view of the above, the appeal
lacks merit and is accordingly dismissed.
---------
566 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.07.2008

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE ARUN TANDON, J.

Special Appeal (567) of 2008

State of U.P. and others ...Appellants
Versus
Krishna Murari Lal
...Respondent

Counsel for the Appellants:
Sri. G.C. Upadhay
S.C.

Counsel for the Respondent:
Sri Ram Mohan

U.P Retirement to Service Determination
of Date of Birth Rules 1974-Rule-3-date
of birth once recorded in service book-in
absence of High School certificate-shall
be final-concerned employee admittedly
a High School fail-wholly irrelevantbefore entering in service-High School
pass certificate not in existence-heldauthorities rightly rejected the plea of
employee.

Held: Para 16

Thus, the date of birth recorded in the
certificate of the year 1959, when he had
failed in the High School does not fall
within Rule-3 and no benefit can be
drawn by the petitioner on the basis
thereof. According to the Rule-3 the date
of birth of such a government servant as
recorded in the service book at the time
of entry into service has to be treated to
be the correct date of birth. Even if any
correction was made in the date of birth
by red ink to read as 31st May, 1945 by
Settlement Officer of Consolidation, said
change was unauthorised and contrary
to the Statutory Rules. The Consolidation
Commissioner has rightly taken the view
that date of birth of the petitioner, which
was initially entered into service i.e. 3rd
December, 1943 has to be accepted.

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard learned Standing Counsel
for the respondents-appellants and Sri
Ram Mohan, learned counsel for the
respondent.

2. With the consent of the parties,
this special appeal is being disposed of at
this stage without calling for any counter
affidavit specifically in view of the order
proposed to be passed today.

3. This is an intra court appeal
against the judgment and order passed by
the learned Single Judge dated 20th
December, 2007, whereby the writ
petition filed by the respondent has been
allowed and the impugned notice dated
17th April, 2003 has been quashed holding
that the petitioner is entitled to continue in
Service and to receive salary treating his
date of birth as 31st May, 1995, it has also
been provided that he would be entitled to
his retiral benefits on that basis. State of
U.P., not being satisfied by the direction
so issued, has filed this appeal.

4. The brief facts necessary for
deciding the special appeal are that the
writ petitioner was initially appointed as a
Tabulator on 7th February, 1967 in the
Consolidation
Department
and
subsequently he was granted promotions
on next higher posts. While working as
Lekhpal, he was retired treating his date
of birth as 3rd December, 1943. This led to
the filing of the writ petition no. 38857 of
2003, which has been allowed as
indicated above.