# Shyam Chandra Pathak v. The U.P. State

- **Citation:** (2012) 1 ILRA 327
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-02-03
- **Case number:** Civil Misc. Writ Petition No.20633 of 1988
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyam-chandra-pathak-v-the-u-p-state-42128
- **Pages:** 5

## Headnote

Constitution
of
India,
Article
226Regularization
Claimed
based
upon
judgments-prior to Uma Devi Case-ad-hoc
employees
working
long
period-not
entitled for regularization-if appointed
without post, without following process of
recruitment-not entitled for regularization.

Held: Para 6

So far as Judgment of Hon'ble Single
Judge relied by learned counsel for
petitioner
are
concerned,
all
the
judgments have been rendered before
10.4.2006 on which date Constitution
Bench of Apex Court rendered decision in
Secretary, State of Karnataka Vs. Uma
Devi, 2006 (4) SCC 1 and held that all the
judgments
contrary
thereto
stand
overruled and thus those judgments are no
more applicable in view of aforesaid
Constitution Bench Judgment. Moreover, it
is also well settled that benefit of interim
order
cannot
be
extended
in
case
ultimately petitioner is not successful in
establishing his right.
Case law discussed:
Civil Misc. Writ Petition No. 20398 of 1988,
Rakesh Kumar Saxena Vs. U.P. State Food and
Essential Commodities Corporation Ltd. and
others; Special Appeal No. (7) of 2008, Tek
Chand and others Vs. U.P. State Food and
Essential Commodities Corporation Ltd. and
others; 2001 (1) AWC 287 (SC); Shivaji Singh
and others v. High Court of Judicature at
Allahabad and others, Civil Misc. Writ Petition
No.52755 of 2002; 2006 (2) AWC 1738; 2006 (4)
SCC 1; 2007 (2) ESC 987; AIR 1975 Allahabaad
280; 1986 (4) LCD 196; AIR 1994 Allahabad 273;
JT 2009 (2) SC 520; J.T. 2009 (10) SC 309

## Text

1 All Shyam Chandra Pathak V. The U.P. State Food And Essential Commodities Corporation
327
petitioner and not the Chief Development
Officer/Executive Director and Head of
the Department.

16. For all the reasons stated above we
quash the impugned orders dated 30th
March/1st April,2002 and dated 4.4.2002
passed by respondent nos. 2 and 3
respectively. However, in the facts and
circumstances of the case noted above and
in order to bring finality to any irregularity
in the orders passed by the CDO/Executive
Director,
we
further
direct
the
Commissioner to ratify the order with effect
from the date the appellant has completed
14 years of satisfactory service.

17. The writ petition is allowed. No
order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.02.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No.20633 of 1988

Shyam Chandra Pathak
 ...Petitioner
Versus
The
U.P.
State
Food
And
Essential
Commodities Corporation ...Respondents

Counsel for the Petitioner:
Sri Janardan Sahai
Sri Sanjiv Ratna
Sri Sharad Kumar Srivastava
Sri D.N. Singh

Counsel for the Respondents:
Sri Srikant Shukla
S.C.

Constitution
of
India,
Article
226Regularization
Claimed
based
upon
judgments-prior to Uma Devi Case-ad-hoc
employees
working
long
period-not
entitled for regularization-if appointed
without post, without following process of
recruitment-not entitled for regularization.

Held: Para 6

So far as Judgment of Hon'ble Single
Judge relied by learned counsel for
petitioner
are
concerned,
all
the
judgments have been rendered before
10.4.2006 on which date Constitution
Bench of Apex Court rendered decision in
Secretary, State of Karnataka Vs. Uma
Devi, 2006 (4) SCC 1 and held that all the
judgments
contrary
thereto
stand
overruled and thus those judgments are no
more applicable in view of aforesaid
Constitution Bench Judgment. Moreover, it
is also well settled that benefit of interim
order
cannot
be
extended
in
case
ultimately petitioner is not successful in
establishing his right.
Case law discussed:
Civil Misc. Writ Petition No. 20398 of 1988,
Rakesh Kumar Saxena Vs. U.P. State Food and
Essential Commodities Corporation Ltd. and
others; Special Appeal No. (7) of 2008, Tek
Chand and others Vs. U.P. State Food and
Essential Commodities Corporation Ltd. and
others; 2001 (1) AWC 287 (SC); Shivaji Singh
and others v. High Court of Judicature at
Allahabad and others, Civil Misc. Writ Petition
No.52755 of 2002; 2006 (2) AWC 1738; 2006 (4)
SCC 1; 2007 (2) ESC 987; AIR 1975 Allahabaad
280; 1986 (4) LCD 196; AIR 1994 Allahabad 273;
JT 2009 (2) SC 520; J.T. 2009 (10) SC 309

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

1. Heard learned Counsel for
petitioner and Sri Srikant Shukla for
respondents 1 and 2.

2. Petitioner was engaged on purely
ad hoc basis and by means of impugned
order he has been terminated since his
services were no longer required.

3. Learned counsel for petitioner
relied on judgments of this Court in Civil
328 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Misc. Writ Petition No. 12974 of 1987
(V.K. Gupta Vs. Regional Manager,
U.P.) decided on 8.11.2005, Civil Misc.
Writ Petition No. 21346 of 1999 (Dinesh
Singh Vs. U.P. State Food And Essential
Commodities Corporation Ltd. decided
on 5.1.2006, Civil Misc. Writ Petition No.
24833 of 1988 decided on 14.2.2006 and
Civil Misc. Writ Petition No. 2193 of
1989 Rajendra Singh Vs. U.P. State Food
and Essential Commodities Corporation
Ltd. decided on 23.3.2006 and contended
that since he has worked for long time
pursuant to an interim passed by this Court
in the present case, he should be allowed to
continue.

4. Firstly I come to the merits of case
as to whether petitioner is entitled for relief
or not. This issue in a similar matter has
been considered by this Court in Civil
Misc. Writ Petition No. 9826 of 1990
Shree Prakash Misra Vs. State of U.P. &
others) decided on 14.9.2009 and it has
been held as under:

"4. From the facts narrated in the writ
petition, however, it appears that the
petitioner was appointed as a seasonal
clerk on ad hoc basis for a period of three
months in U.P. State Food and Essential
Commodities Corporation Ltd, (hereinafter
referred to as the "Corporation") and
posted at Sewarhi Purchase Centre.
Thereafter he was further employed for
another period of three months by order
dated 15.01.1985 and so on. After
amendment of the U.P. Regularisation of Ad
hoc Appointments (on Posts Outside the
Purview of the Public Service Commission),
Rules 1979 (hereinafter referred to as the
"1979 Rules") and extension of the cut off
date as 01.10.1986 the petitioner claimed
regularisation and it appears that the
Deputy Finance Manager (Purchase) made
a recommendation on 14.06.1998 for
sanction of a post whereagainst the
petitioner
may
be
considered
for
regularisation and thereafter this writ
petition has been filed.

5. Admittedly, from the facts stated in
the writ petition it is evident that there was
no
post
available
whereagainst
the
petitioner could have been appointed or
regularised or made permanent in service.
It further appears that seeking a similar
relief some other writ petitions were filed
and one of such is Civil Misc. Writ Petition
No. 20398 of 1988, Rakesh Kumar Saxena
Vs. U.P. State Food and Essential
Commodities Corporation Ltd. and others,
which was dismissed by this Court vide
judgement dated 26.10.2006 and the said
judgement of Hon'ble Single Judge has been
confirmed in Special Appeal No. (7) of
2008, Tek Chand and others Vs. U.P. State
Food
and
Essential
Commodities
Corporation Ltd. and others, dismissed on
07.01.2008.

6. It is well settled that in the absence
of any post neither the question of
regularisation
nor
permanence
is
permissible. Besides the appointment made
for a fixed term or ad hoc appointment does
not confer any right upon the incumbent
concerned to claim regularisation unless it
is provided under the statutory rules. The
judgement of this Court in Jai Kishan
(supra) has no application to the facts of
this case inasmuch as this aspect has
already been considered by a Division
Bench of this Court in Dukhi Singh Vs.
State of U.P. and others, 2007(4) ADJ 186
and it has been held that was a case decided
in the absence of any defence taken by the
respondents, and it has no universal
application to other matters. The validity of
cut off date prescribed under 1979 Rules
1 All Shyam Chandra Pathak V. The U.P. State Food And Essential Commodities Corporation
329
has already been upheld by this Court in
several cases. In Subedar Singh and others
v. District Judge, Mirzapur and another,
2001 (1) AWC 287 (SC) the Hon'ble Apex
Court confirmed the judgment of a Division
Bench of this Court upholding the cut of
date as 1.10.1986 fixed under the U.P.
Regularization of Ad hoc Appointment (On
Posts outside the Purview of U.P. Public
Service Commission) Rules, 1979, as
amended by Second (Amendment) Rules,
1989 where this Court held as under:

".......One
of
the
relevant
considerations for regularisation is the
length of the service rendered by the ad hoc
employee ... but we see no rationale behind
the view that all the employees even if they
had put in only one day of service as ad hoc
should have been made eligible to be
considered and, therefore, the cut off date
specified in Rule 10 is irrational. .... What
should be the length of service is a matter of
policy to be decided by the Rule making
authority. Further, length of service is not
the only criterion to be taken into
consideration while making such decision.
There can be no rule of thumb in such
matters. It is not beyond the competence of
the Rule making authority to limit eligibility
to the employees who joined service as ad
hoc employees upto a specified date..."

7. The judgment of this Court was
confirmed by the Hon'ble Apex Court on
merit, agreeing with the reasoning and the
conclusion given in the judgment, as is
apparent from para 3 of the judgment, in
Subedar Singh (supra) wherein the Hon'ble
Apex Court held as under:

"... The High Court has examined all
the contentions by a detailed discussion of
the relevant provisions of the Rules and we
do not find infirmities with the reasoning
and conclusions of the High Court in the
impugned judgment. No rule, law or
regulation, nor even any administrative
order had been shown to us on the basis of
which the appellants could claim the right
of regularisation, in the aforesaid premises,
we do not find any merit in any of these
appeals which accordingly stands dismissed
but in the circumstances, there will be no
order as to costs."

8. Again the cut of date of 30.6.1998
provided in U.P. Regularization of Ad hoc
Appointment (on posts outside the Purview
of U.P. Public Service Commission) Rules,
1979, as amended in 2001 came up for
consideration before a Hon'ble Single
Judge in Shivaji Singh and others v. High
Court of Judicature at Allahabad and
others, Civil Misc. Writ Petition No.52755
of 2002 decided on 8.8.2003 and the
Hon'ble Single Judge upheld the aforesaid
cut of date. The matter went in Special
Appeal No.705 of 2003 and upholding the
cut of date a Division Bench held as under:

"It further observed that the proposed
amendment substituting the cut off date did
not create two classes of persons. It created
only one class of persons who possessed
requisite
qualification
for
regular
appointment at the time of ah hoc
appointment
and
had
been
directly
appointed on ah hoc basis on or before
30.6.1998 and was continuing on service as
such on 20.12.2001 and had further
completed 3 years of service. From the
scheme underlying the amendment only one
class of person had been taken up for
consideration for regularisation i.e. a
person who filled all the 3 conditions given
in Rule 4 of the Rules 2001."

9.
Following
the
aforesaid
two
judgments another Division Bench of this
330 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Court in Vinita Singh and others v. State of
U.P. and others, 2006 (2) AWC 1738 has
upheld the cut of date 30.6.1998 provided
U.P. Regularization of Ad hoc Appointment
(on posts within the Purview of U.P. Cooperative
Institutional
Service
Board)
Regulation
1985,
as
amended
vide
notification dated 24.3.1993.

10. Besides, the matter is also covered
by the decisions of this Court in Rakesh
Kumar Saxena (supra) and Tek Chand
(supra). The writ petition, therefore, lacks
merit and is accordingly dismissed. Interim
order, if any, stands vacated.

5. Learned counsel for petitioner
could not make any submission to
distinguish the aforesaid judgment.

6. So far as Judgment of Hon'ble
Single Judge relied by learned counsel for
petitioner are concerned, all the judgments
have been rendered before 10.4.2006 on
which date Constitution Bench of Apex
Court rendered decision in Secretary, State
of Karnataka Vs. Uma Devi, 2006 (4)
SCC 1 and held that all the judgments
contrary thereto stand overruled and thus
those judgments are no more applicable in
view of aforesaid Constitution Bench
Judgment. Moreover, it is also well settled
that benefit of interim order cannot be
extended in case ultimately petitioner is not
successful in establishing his right. The
service rendered pursuant to an interim
order would not give any benefit to
petitioner. 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."

7. 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.
1 All IInd Lt.Shatrughan Singh Chauhan V. Union of India and another
331

"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."

8. 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.
............."

9. So far as the service rendered by
petitioner for long time is concerned, it is
well settled that long continuance, if the
appointment has not been made strictly in
accordance with law, would not confer any
right upon incumbent to hold the post. The
Apex Court in Shesh Mani Shukla (supra)
J.T. 2009 (10) SC 309 held:

"It is true that the appellant has
worked for a long time. His appointment,
however, being in contravention of the
statutory provision was illegal, and, thus,
void ab initio. If his appointment has not
been granted approval by the statutory
authority, no exception can be taken only
because the appellant had worked for a
long time. The same by itself, in our
opinion, cannot form the basis for obtaining
a writ of or in the nature of mandamus; as it
is well known that for the said purpose, the
writ petitioner must establish a legal right
in himself and a corresponding legal duty in
the State."

10. In view of above, I find no merit
in the writ petition. Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.03.2012

BEFORE
THE HON'BLE SATYA POOT MEHROTRA,J.
THE HON'BLE MRS. SUNITA AGARWAL,J.

Civil Misc. Writ Petition No. 34918 of 1993

IInd Lt.Shatrughan Singh Chauhan

 ...Petitioner
Versus
Union of India & another ...Respondents

Counsel for the Petitioner:
Sri Sudhanshu Dhulia
Sri B.N. Singh
Sri S.K. Shukla
Sri Chandra Narain Tripathi
Sri Murlidhar

Counsel for the Respondents:
Sri S.N. Srivastava
Sri Shishir Kumar
Sri S.K. Rai
Sri K.L. Grover
Sri U.N. Sharma (S.S.C.)
C.S.C.

Constitution of India, Article 226/227
with Army Act-Section-34-member of