# Shanker Yadav v. State of U.P. & others writ petition No. 24413 of

- **Citation:** (1999) 3 ILRA 105
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1999
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shanker-yadav-v-state-of-u-p-others-writ-petition-no-24413-of-39351
- **Pages:** 7

## Text

3 All.] ALLAHABAD SERIES
105
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Case law discussed.
1991(1) SLR 321
1997(76) FLR 237
1991(1) SCC 691
AIR 1992 SC-2070
AIR 1992 SC 2130

By the Court

1.
The petitioner was initially appointed in the post of clerk on
daily wage basis for a period of three months on 17th April, 1991 as
is evident from annexure-1 to the writ petition. The services were
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106 THE INDIAN LAW REPORTS [1999
thereafter extended by an order dated 18th July,1991 contained in
anneuxre-2 to the writ petition for another period of three months.
Thereafter, it was further extended for a period of three months by an
order dated 3rd December,1991 the services were extended for
another period of three months as is evident from anneuxre-4. Again
by an order dated 29th May,1992, the services of the petitioner were
extended for a period of three months as is apparent from annexure5. Thereafter, by an order dated 18th June,1992, there was a general
order for dispensing with services of all such daily wage employees
since there was no provision for appointment of such daily wage
employee under the ?Rules and that employment has been brought
within the purview of the U.P. Sub-ordinate service Selection
Commission. Pursuant to the said order, by an order dated 19th June,
1992, the petitioner's services was dispensed with. These are
annexure-6 & 7 respectively.

2.
By means of this Rules, Mr. Rajeev Mishra, learned counsel
for the petitioner had assailed the said order contained in annexure-6
& 7 respectively. Relying on the decision in the case of Rama
Shanker Yadav Vs. State of U.P. & others writ petition No. 24413 of
1992 disposed of on 11th February, 1998, Mr. Mishra points out that
the impugned order contained in annexure-6 has since been quashed
by this Court on 11th February, 1998. Therefore, the basis of issuing
the order contained in annexure-7 having been non est, the order of
termination cannot be sustained. He further contends that since the
petitioner had continued for quite sometime, his services cannot be
terminated in this manner without giving any opportunity to the
petitioner and without following necessary procedure for dispensing
with service since there is no allegation as against the petitioner. He
further points out from the amendment application filed on 22nd
April, 1998 that pursuant to the interim order granted in this writ
petition, the petitioner was reinstated in service on 15th January,
1993. But subsequently, the petitioner was not paid salary since
April,1996 till 12th February,1998. On the other hand, on 12th
February,1998 by an order dated 9th February, 1998 contained in
annexure-2 to the Amendment Application, the petitioner's services
were against terminated. Therefore, the petitioner has filed the
present application for amendment in order to bring on record the
subsequent events that had taken place during the pendency of the
writ petition.

3.
After hearing Mr. Rajeev Mishra, learned counsel for the
petitioner and Mr. R.K.Saxena, learned Standing Counsel, the
1999
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Sarita Singh
 Vs.
State of U.P.
& others
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D.K. Seth, J..
3 All.] ALLAHABAD SERIES
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application for amendment is allowed. The application for
amendment is to be treated as part of the writ petition.

4.
After the amendment is allowed by consent of the parties, the
writ petition is taken up for hearing. Mr. Rajeev Mishra had
addressed the Court on the merits of the case on the basis of the
amended pleadings in the writ petition. Mr. Saxena had also made
his submission.
I have heard both the counsel at length.

5.
The appointment letter contained in annexure-1 specifies that
the appointment was on daily wage basis and purely temporary for a
period of three months from the date of joining. The order dated 18th
July, 1991 contained in annexure-2 also mentions that the service is
being extended for a period of three months from 18th July,1991. The
order dated 3rd December,1991 contained in annexure-3 again
extended the services of the petitioner. Similarly, services were
extended for three months from 20th January,1992 by virtue of the
order dated 16th January,1992 contained in annexure-4. While
annexure-5 dated 29th May, 1992 extended the services for another
three months. But there was no subsequent extension. By reason of
the order dated 18th June,1992, the services of the petitioner was
dispensed with by an order dated 19th June,1992 contained in
annexure-7. Relying on the decision in the case of Rama Shanker
Yadav (Supra), Mr. Rajeev Mishra, contends that the order dated 18th
June,1992 having been quashed, the basis of termination of services
of the petitioner by the order dated 19th June,1992 had become nonexistent. Therefore, the order dated 19th June,1992 contained in
annexure-7 dispensing with petitioner's service on the basis of the
order dated 18th June, 1992 contained in annexure-6 looses its force.
Thus as soon the order dated 19th June,1992 becomes inoperative, the
order extending the petitioner's service by order dated 29th May,1992
contained in annexure-5 revives.

6.
In the decision in the case of Rama Shanker Yadav (Supra),
the order dated 18th June,1992 was not quashed as a whole. It was
quashed so far as the petitioner in that case was concerned. The
consideration of the order dated 18th June,1992 was confirmed to the
case of the petitioner in that case alone, as is apparent from the
reading of the said decision. There is nothing in the said decision to
indicate that the order was challenged as a whole. Whatever might be
the position the Court had confirmed itself to the case of the
petitioner only while deciding the said case. In as much as in the said
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Sarita Singh
 Vs.
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& others
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D.K. Seth, J..
108 THE INDIAN LAW REPORTS [1999
case the Court had observed that the Court had carefully considered
the case of the petitioner and found that the order of termination was
illegal and arbitrary since the petitioner was initially appointed by
the Director and that there was no illegality and irregularity in the
said appointment. This observation clearly indicates that the case
was confirmed to the petitioner Rama Shanker Yadav alone. The said
decision has not recorded any reason or basis of its satisfaction. It
may be on the basis of the materials placed before the Court in the
said case on the facts and circumstances of the said case. It has not
laid down any ratio decidendi which could be followed as precedent
in the present case. The contention of Mr. Rajeev Mishra therefore,
cannot be acceded to on account of the distinguishing feature as
discussed above in relation to the case of Rama Shanker Yadav
(Supra) and hat of this case.

7.
Then again by virtue of the said order dated 29th May, 1992
the petitioner was entitled to continue for a period of three months
from 29th May, 1992. Thus the services being limited by time and
there having been no further extension, the petitioner cannot claim
any right to continue after the expiry of the said period of three
months from 29th May, 1992 and the services of the petitioner would
automatically come to an end. In such a situation, the petitioner
cannot claim any legal right in continuing in service and there cannot
be existence of any legal right which can be asserted through writ
jurisdiction to continue in service by virtue of the said appointment
on daily wage basis on the post of a clerk.

8.
In the relevant rules being the U.P. Ayurvedic & Unani
Clerical Services Rules,1991, there is no provision for appointment
of clerk on daily wage basis. Then again by virtue of 1991 Rules, the
appointment in the post of clerk had become subject to selection by
the U.P.Sub-ordinate Service Selection Board. There cannot be any
appointment de hors the rules that too by an authority other than the
Service Commission. Therefore, the petitioner cannot claim any right
to continue on the post.

9.
But the fact remains that an interim order was issued on 21st
July,1992 in the present writ petition by virtue whereof the petitioner
was reinstated on 15th January,1993. Such reinstatement was subject
to the result of the writ petition. The interim order does not confer
any right. The interim order is an order interim during the pendency
of the writ petition. If depends on the result of the writ petition. Since
the petitioner had no right which could be asserted on the date when
1999
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Sarita Singh
 Vs.
State of U.P.
& others
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D.K. Seth, J..
3 All.] ALLAHABAD SERIES
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the writ petition was moved for a period beyond three months from
the date 29th May,1992. She cannot claim to continue beyond the
same. If she had continued or reinstated by virtue of the interim
order, the same does not confer any right on her since I have already
held that she did not have any right to continue in the post.

10.
Be that as it may, second order of termination contained in
annexure-2 to the amendment application shows the reason on which
the services of the petitioner were terminated. It had pointed out that
the petitioner was not posted against any sanctioned post and the
appointment was not a regular appointment. Thus even if it is
assumed that the petitioner had been continuing by virtue of the
interim order then she had a right to continue but that right is subject
to a determination by the authority to retain her services and the
second order appears to have been passed on the basis of a decision
in writ petition No. 1366(SS) of 1997 and the connected writ petition
decided on 7th/8th August,1997 whereby permission was given to
dispense with all illegal appointments. Having found that the
petitioner was not appointed on a post in a regular manner and that
there having been on post to accommodate the petitioner, she was
removed from the services.

11.
Independent of the interim order, let us examine the validity of
the order dated 9th February,1998 contained in annexure-2 to the
amendment application. As observed earlier, since there is no
provision for appointment on daily wage basis after the 1991 Rules
were framed and the question of appointment in the post of clerk
having been subjected to the Service Commission and the petitioner
having not been appointed against a regular post through a regular
selection, the petitioner could not claim any legal right to assert
through writ jurisdiction. The Court cannot support the entry in
service through back door. The judicial process cannot be utilised to
support a mode of recruitment de hors the rules as has been held in
the case of State of Himanchal Pradesh Vs. Suresh Kumar Verma
[1991(1)SLR 321]. Then again in the case of Himangsu Kumar
Vidyarthi Vs., State of Bihar & others [1997(76)FLR 237], the Apex
Court had held that daily wage employee has no right to the post.
Concept of retrenchment cannot be extended to them. Their
disengagement is not arbitrary. In the present case, the petitioner was
also not engaged against a post. Therefore, the principle enunciated
in the said decision applies in full force in the present case. In the
case of Sate of U.P. Vs. Kaushal Kumar Shukla [1991(1) SCC 691]
as well as in the case of Director, Institute of Management 7
1999
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Sarita Singh
 Vs.
State of U.P.
& others
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D.K. Seth, J..
110 THE INDIAN LAW REPORTS [1999
Development Vs. Smt,. Puspa Srivastava [AIR 1992 SC 2070], the
Apex Court had held that a person appointed for a limited time
cannot claim any right to continue after the expiry of the time limit.
In the case of State of Haryana Vs. Pyara Singh [AIR 1992 SC 2130]
the Apex Court had depricated the entry into service through back
door.

12.
Mr. Mishra had also relied on two circulars contained in
annexure-3 & 4 to the amendment application whereby there has
been a proposal of regularisation of the employees. Relying on those
circulars Mr. Mishra contends that by reason of continuation in
service pursuant to the interim order, the petitioner has also acquired
a right to be considered for regularisation on the basis of her
seniority as provided in annexure-3 & 4 respectively. In fact, the said
two annexures shows that those were issued to regularise the persons
who were working pursuant to the interim order granted by this
Court though there was no post. Therefore, such persons working
against no post pursuant to the interim order being considered on the
basis of seniority for being absorbed or adjusted against any vacancy
in the Class-IV post. But the said circular has one provision which
clearly cases out the petitioner. Because the said circular was meant
for Class-IV employees. Since it is specifically mentioned that those
Class-IV employees who are working though there is no post
available by reason of the order of the High Court, they are to be
adjusted against the new vacancies or that might be resulted or
created in future. Both these circulars deal with Class-IV employees.
However, no such order could be issued in respect of a person
employed in Class-III post since such employment is subject to 1991
Rules and its selection conducted by the Service Commission.
Therefore, no relief can be claimed by the petitioner by reason of the
said two circulars contained in annexure-3 & 4 to the amendment
application.

13.
Mr. Mishra had also relied on the U.P. Regularisation of Daily
Wages Appointment on Group-C Posts (Outside the purview of U.P.
Public Service Commission) Rules 1998 since been promulgated on
9th July, 1998 and contends that by reason of Rule 4(1)(I), the
petitioner could have been become eligible for regularisation unless
the order dated 9th February, 1998 was passed. In fact, by virtue of
the said 1998 Rules, had the petitioner's service not been terminated
by order dated 9th February, 1998 she could have been within the
zone of consideration for regularisation. But admittedly, the
petitioner was not in service on 9th July,1998. Unless the order dated
1999
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Sarita Singh
 Vs.
State of U.P.
& others
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D.K. Seth, J..
3 All.] ALLAHABAD SERIES
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9th February, 1998 is held to be invalid and the petitioner is deemed
to be continued, it cannot be said that she could come within the
zone of consideration within 1998 Rules. Since I have already held
that there is no infirmity in the order dated 9th February, 1998
therefore, the petitioner cannot claim to continue in service on 9th
July, 1998 in order to claim the benefit of the 1998 Rules.

In the result the writ petition fails and is, accordingly,
dismissed. However, there will be no order as to costs.

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Case law discussed.
1999 (I) ARC 188
1997 (1) ARC 627 (SC)
1975 ALJ 669 Para-4

By the Court

Smt. Dhanraji Debi and Jagdeo Shah Respondent no. 4 and 4
since dead represented by legal representatives) filed release
application under Section 21 (1) (a), U.P. Urban Buildings
(Regulation of letting , Rent and Eviction) Act, 1972 (U.P. Act No.
1999
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August, 6