# Sarvesh Kumar Singh v. State of U.P. and others

- **Citation:** (2007) 1 ILRA 178
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-01-13
- **Case number:** Civil Misc. Writ Petition No. 25849 of 2006
- **Bench:** S.Rafat Alam, Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sarvesh-kumar-singh-v-state-of-u-p-and-others-40816
- **Pages:** 5

## Headnote

Constitution of India, Art. 226-Service
Law-Ad-hoc appointment-as Lecturer in
1 All] Sarvesh Kumar Singh V. State of U.P. and others
179
Economic-in Degree College on fixed
term-after expiry of said period-No right
to
claim
appointment-plea
ad-hoc
appointee
can
not
be
replaced
by
another
ad-hoc
appointment
not
available.

Held: Para 6 & 10

In
this
case
also,
admittedly,
the
appointment of the petitioner is for fixed
tenure and in case the contention of the
petitioner is accepted it will amount to
giving an appointment by this Court for
the period subsequent to 30.6.2006
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.

It is not disputed that as per the
conditions of the said Government order
as a whole, the appointment of the
petitioner on honorarium basis was
made and in the said G.O. the condition
was that the petitioner's appointment
will be for one session only whereafter a
fresh selection has to be made for the
next session. Therefore, the petitioner
has no legal right to continue after
30.6.2006 since the appointment letter is
time bound. The relief sought by the
petitioner, thus, cannot be granted.
Case law discussed:
2002 (2) UPLBEC-1373
1992 (9) SCC-33
W.P. No.20871/06 decided on 25.4.06
J.T. 2006 (4) SC-420

## Text

178 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
enquiry cannot thus be interpreted in a
manner so as to confer an arbitrary,
unguided and absolute power to keep an
employee
under
suspension
without
enquiry for unlimited period or by
prolonging
enquiry
unreason8bly,
particularly
when
the
delinquent
employee is not responsible for such
delay. Therefore, I am clearly of the
opinion that a suspension, if prolonged
unreasonably without holding any enquiry
or by prolonging the enquiry itself, is
penal in nature and cannot be sustained.

In the case, in hand, counter affidavit
has been filed by the respondents on 25-92005 wherein it is admitted that charge
sheet has been issued only in respect to
the petitioner Nos. 3 and 7 on 17.5.2005
and 5.9.2005 respectively, but in respect
to all other petitioners even the charge
sheet has not been issued till the date of
swearing
of
the
counter
affidavit,
although all the petitioners were already
under suspension for the last 6-7 months
till that time. The learned counsel for the
petitioners has stated that there is no
further progress in the matter, and it could
not be controverted by the counsel for the
respondents. In these circumstances, since
more than a year has already elapsed, it
cannot be said that continuance of
petitioners under suspension is reasonable
and valid. Even the allegations contained
in the order of suspension prima facie: do
not construe such serious misconduct
which if proved may attract a major
penalty. However, without expressing any
final opinion on this aspect, I am of the
considered opinion that the impugned
order of suspension cannot be allowed to
continue indefinitely, and therefore is
liable to be set aside. In the result the writ
petition is allowed. The impugned orders
of
suspension
dated
13.1.2005 and
23.2.2005 are quashed. The petitioner is
entitled for reinstatement in service.
However, the question of arrears of salary
for the period of suspension shall be
decided by the competent authority after
conclusion of inquiry and in accordance
with relevant rules.

It is, however, provided that the
respondents are at liberty to continue with
the disciplinary proceedings, if any,
against the petitioners and this order will
not come in their way to conclude
disciplinary proceedings and to pass such
final orders as permissible in law. It is
also made clear that any observation made
hereinabove shall not be treated to be an
expression of opinion on the merit of the
charges or in respect to the disciplinary
proceedings, if any, pending against the
petitioners.

No order as to costs.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.05.2006

BEFORE
THE HON'BLE S.RAFAT ALAM, J.
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 25849 of 2006

Sarvesh Kumar Singh

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

Counsel for the Petitioner:
Sri D.K. Singh

Counsel for the Respondents:
C.S.C.

Constitution of India, Art. 226-Service
Law-Ad-hoc appointment-as Lecturer in
1 All] Sarvesh Kumar Singh V. State of U.P. and others
179
Economic-in Degree College on fixed
term-after expiry of said period-No right
to
claim
appointment-plea
ad-hoc
appointee
can
not
be
replaced
by
another
ad-hoc
appointment
not
available.

Held: Para 6 & 10

In
this
case
also,
admittedly,
the
appointment of the petitioner is for fixed
tenure and in case the contention of the
petitioner is accepted it will amount to
giving an appointment by this Court for
the period subsequent to 30.6.2006
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.

It is not disputed that as per the
conditions of the said Government order
as a whole, the appointment of the
petitioner on honorarium basis was
made and in the said G.O. the condition
was that the petitioner's appointment
will be for one session only whereafter a
fresh selection has to be made for the
next session. Therefore, the petitioner
has no legal right to continue after
30.6.2006 since the appointment letter is
time bound. The relief sought by the
petitioner, thus, cannot be granted.
Case law discussed:
2002 (2) UPLBEC-1373
1992 (9) SCC-33
W.P. No.20871/06 decided on 25.4.06
J.T. 2006 (4) SC-420

(Delivered by Hon'ble S. Rafat Alam, J.)

1. Heard learned counsel for the
petitioner.

In the instant petition the petitioner
has come up for issuance of a writ of
mandamus commanding the respondents
not to interfere in his functioning as
lecturer
of
Economic
in
Janta
Mahavidyalaya Ranipur, Mau till regular
selection is made on the recommendation
of the U.P. Higher Education Service
Commission against the post held by him.

2. It appears that the petitioner was
appointed as lecturer in Economics on ad
hoc basis in the aforesaid College vide
letter of appointment dated 2.1.2006 on
honourarium basis with clear stipulation
that he shall be allowed to contunue till
30.6.2006 or till regularly selected teacher
is available, whichever is earlier. The
term of appoinmtne mentioned in the
letter
dated
2.1.2006
is
extracted
hereinafter:-

^^jktkKk la[;k % 4671 @1 lRrj 2&96&3 1⁄491⁄2@
93 Vh0lh0 fnukad 07 vizSy 1998 esa fufgr izkfo/kkuksa ds
vUrxZr turk ih0th0dkyst jkuhiqj e ? egkfo|ky; ds
vFkZ'kkL= foHkkx esa bl vk'k; dk 'kiFk i= miyC/k djkus
ij fd vki ekuns; ds vk/kkj ij v/;kiu [kpZ djus dh
,ot esa fu;fer fu;qfDr iznku djus dh ekax ugha djsxsa]
fuf'pr ekuns; ds vk/kkj ij fnukad 30 twu 2006 vFkok
fu;fer f'k{kd miyC/k gksus dh n'kk esa] tks Hkh igys gks]
f'k{kk funs'kd mPp f'k{kk dh vuqefr ls v/;kiu dk;Z gsrq
vuqefr iznku dh tkrh gSA
fnukad 02-01-06 g0 viBuh;
izcU/kd @ lfpo ds gLrk{kj**

3. Learned counsel for the petitioner
submits that the College is contemplating
to make fresh appointment for the post
held by the petitioner by ad hoc
appointment as per Government Order
dated 7.4.98 contained in Annexure-1 to
the writ petition. It is submitted that
Clause (2) of the aforesaid G.O. is
arbitrary and cannot sustain as an ad hoc
appointee cannot be replaced by another
ad hoc appointee. It is further submitted
that in a similar circumstances another
Bench in the case of Pankaj Singh Vs.
State of U.P. and others, (Writ Petition
No.23381 of 2002), vide order dated
5.6.2002 issued notice and by interim
180 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
order restrained fresh appointment on ad
hoc basis.

4.

We
have
considered
the
submissions made by the learned counsel
for the petitioner and perused the material
on record.

5. The appointment of the petitioner
being for a fixed tenure. He has no right
to continue beyond the period indicated in
the letter of appointment, from a perusal
thereof it is evident that the appointment
was made time bound upto 30.6.2006 or
till regularly selected teacher is available
whichever is earlier. Extension of the
appointment by judicial order, therefore,
is not permissible. Similar controversy
came up for consideration before a
Division Bench of this Court in the case
of Alok Kumar Singh (Dr.) & 15 others
Vs. State of U.P. & others, (2002) 2
UPLBEC 1373 wherein it has been held
that the petitioners cannot claim any right
to continue in service beyond the period
of appointment provided in the letter of
appointment. Since the matter is already
concluded by a Division Bench judgment
of this Court, interim order sought to be
relied by the petitioners is of no help, as
this Court is bound by the law laid down
in the final judgment of this Court since
interim order do not lay down any binding
precedent.

6. Besides, the appointment of the
petitioner is for a fixed term i.e. till
30.6.2006 or till the regularly selected
candidates join, whichever is earlier. In
case no candidate selected by the
commission is available before 30.6.2006,
the appointment of the petitioner shall
come
to
an
end
by
30.6.2006
automatically by efflux of time. The
appointment,
being
a
fixed
term
appointment, in case the contention of the
petitioner is accepted, it would amount to
re-writing the appointment letter allowing
the petitioner to continue without there
being any letter of appointment issued by
the competent authority for a period
subsequent to 30.6.2006. In the case of
Director,
Institute
of
Management
Development, U.P. vs. Pushpa Srivastava
(Smt.), 1992 (4) SCC 33 the Hon'ble
Apex Court held that the appointment,
which is made for 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 also,
admittedly,
the
appointment
of
the
petitioner is for fixed tenure and in case
the contention of the petitioner is accepted
it will amount to giving an appointment
by this Court for the period subsequent to
30.6.2006
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.

7. Similar view has been taken by
this Court also in Writ Petition No. 20871
of 2006 Dr Vijay Kumar Singh &
others vs. State of U.P. & others,
decided on 254.2006.

8. Further a Constitution Bench of
the Apex Court in Secretary, State of
Karnataka & others Vs. Umadevi &
others-JT 2006 (4) SC 420, in para 34 of
the judgment has observed as under-

"If it is a contractual appointment,
the appointment comes to an end at the
end of the contract, if it were an
1 All] Sarvesh Kumar Singh V. State of U.P. and others
181
engagement or appointment on daily
wages or casual basis, the same would
come to an end when it is discontinued."

9. Learned counsel for the petitioner
further submits that on account of
unemployment and lack of bargaining
position, the petitioner cannot negotiate
with the respondents on equal terms and
therefore, the condition of engagement on
contractual and honorarium basis for one
session is exploitative and is arbitrary. We
are afraid that even this submission
cannot be accepted. Rejecting similar
argument in Umadevi (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
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 casual
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 casually,
would
not
be
getting
even
that
employment when securing of such
employment brings at least some succor
to them. After all, innumerable citizens of
our vast country are in search of
employment and one is not compelled to
accept a 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
flowing from it. In other words, even
while accepting the employment, the
person concerned knows the nature of his
employment. It is not an appointment to a
post in the real sense of the term."

10. Learned counsel for the
petitioner attempted to argue that clauses
No. 2 and 3 of the Government Order
dated
7.4.98
are
arbitrary
and
discriminatory. However, in absence of
such relief or prayer made in the writ
petition, the aforesaid argument of the
learned counsel for the petitioner cannot
accepted. Even otherwise, it is not
disputed that the appointment of the
petitioner
is
in
pursuance
of
the
Government order dated 7.4.98 and
having availed the benefit of the said
Government order it is not open to the
petitioner to advance submission against a
part of the Government order which does
not suits to him now. Either he can take
advantage of the Government order as it
is or the entire order could have been
challenged but it is not permissible to the
petitioner to avail the benefit under the
Government order and also challenge
some of the condition of the said
Government order. It is not disputed that
as per the conditions of the said
182 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Government order as a whole, the
appointment
of
the
petitioner
on
honorarium basis was made and in the
said G.O. the condition was that the
petitioner's appointment will be for one
session only whereafter a fresh selection
has to be made for the next session.
Therefore, the petitioner has no legal right
to continue after 30.6.2006 since the
appointment letter is time bound. The
relief sought by the petitioner, thus,
cannot be granted.

11. In the result this writ petition is
dismissed.

Petition Dismissed.
---------