# Subodh Kumar Pandey v. The District Judge, Maharajganj and another

- **Citation:** (2004) 2 ILRA 478
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-05-14
- **Case number:** Second Appeal No. 326 of 1998
- **Bench:** M. Katju, R.S. Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/subodh-kumar-pandey-v-the-district-judge-maharajganj-and-another-40406
- **Pages:** 3

## Headnote

Constitution of India, Article 226-Service
Law-Termination-Temporary employeehas no right to hold the post-Merely
because
District
Judge
took
into
consideration
fact
that
appellant
habitual of comes to office after drinking
http://www.allahabadhighcourt.nic.in
2 All] Subodh Kumar Pandey V. The District Judge, Maharajganj and another
479
liquor held, order of termination can not
be said as punitive one.

Following the aforesaid decision we find
no merit in this appeal. The appellant
was only a temporary employee and
hence has no right to the post vide
Triveni Shanker Saxena v. State of U.P.
AIR
1992
SC

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
478
large number of cases of this Court Single
Bench as well as Division Bench and
large number of cases of Supreme Court
has held that selection/recruitment or
appointment to any post if some how
made and benefits/gains were derived by
the beneficiary appointee illegally and if
at subsequent stage it is noticed that the
illegalities, irregularities, improprieties,
procedural infirmities and deficiencies or
defects occurred in the selection or such
appointments were detected on the basis
of complaint or at subsequent stage during
adjudication of case and it is noticed that
the out put and product of such defective
and bad selection is outcome of spiled and
defective system and appointment has
been obtained by forgery or foul play
adopted or by non observance of Act,
rules, norms were made in process of
selection
or
appointment
then
the
beneficiary candidate, who has become
output and product of such defective/bad,
selection or outcome of spiled system,
shall have no right or claim to the post or
salary or any consequential benefits in the
service by virtue of such selection or
appointment or gains in any form being
illegal or void or non-est and being
violative of the provisions of Articles 14
and 16 of the Constitution.

17. Similarly this Court (DB) in
2004 (1) ESC Allahabad Page 444
(Arvind Kumar Pipal and others vs.
Commissioner, Trade Tax, UP Lucknow
and others) did not interfere in the
selection
or
the
appointment
made
irregularly and illegally.

18. I have heard learned counsel for
the parties. I find that there was no
vacancy and the procedure prescribed by
the rules relevant to the selection to the
post of junior grade clerk and the
appointment said to have been made was
not in consonance to the provisions of
relevant rules applicable, as such the
selection was bad. The petitioner being
beneficiary appointed as a product of
spoiled system, or defective system shall
have no right to the post or as such he is
not entitled to the salary. The petitioner
has not named any of the person similarly
situated in respect of whom he is said to
have been discriminated, therefore, the
petitioner could not derive any benefit on
this aspect. No other point has been
argued, or pressed in the writ petition.

In these circumstances, this writ
petition is dismissed. Petition dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.5.2004

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R.S. TRIPATHI, J.

Second Appeal No. 326 of 1998

Subodh Kumar Pandey
...Petitioner
Versus
The District Judge, Maharajganj and
another

 ...Respondents

Counsel for the Appellant:
Sri Anil Bhushan

Counsel for the Respondents:
S.C.

Constitution of India, Article 226-Service
Law-Termination-Temporary employeehas no right to hold the post-Merely
because
District
Judge
took
into
consideration
fact
that
appellant
habitual of comes to office after drinking
http://www.allahabadhighcourt.nic.in
2 All] Subodh Kumar Pandey V. The District Judge, Maharajganj and another
479
liquor held, order of termination can not
be said as punitive one.

Following the aforesaid decision we find
no merit in this appeal. The appellant
was only a temporary employee and
hence has no right to the post vide
Triveni Shanker Saxena v. State of U.P.
AIR
1992
SC
496.
The
appeal
is
dismissed.

 Para 8
Case law discussed:
(2003) 2 SCC 433
2003 (2) AWC 1193
2004 (1) AWC 335
(2002) 1 SCC 520
(2003) 2 SCC 386
AIR 1992 SC 496

(Delivered by Hon'ble M. Katju, J.)

1. Heard learned counsel for the
parties.

2. This Special Appeal has been
filed against the impugned judgment of
the learned single Judge dated 9.4.98.

3. The Petitioner was admittedly a
temporary employee. He used to come to
the office after drinking liquor and he
would create nuisance there. His service
was terminated on 27.1.98 on the ground
that it was no longer required.

4. The appellant filed a writ petition
which was dismissed by the learned single
Judge of this Court and hence this appeal.

5. The termination order was passed
by
the
learned
District
Judge,
Maharajganj.
The
appellant
was
a
temporary employee and he should have
behaved himself. Merely because the
learned District Judge has taken into
consideration the fact that the appellant
comes of office after drinking linger this
would not make the order punitive in
nature in Union of India v. A.P. Bajpai
(2003)
2SCC
433
the
temporary
employee was found sleeping during duty
hours when he was posted at the Air Port.
He frequently went on leave and absented
himself.
Hence,
his
service
was
terminated. It was argued on his behalf
that the order was punitive in nature and
hence was illegal as no enquiry was held.
The
Supreme
Court
repelled
this
submission and held that the order was
innocuous in nature.

6. In Mathew P. Thomas v. Kerala
State Civil Supply Corporation 2003(2)
AWC
1193
the
Appellant
was
a
probationer who had been warned to
improve his work. Since he did not work
properly he was given a show cause
notice and thereafter his service was
terminated. The Supreme Court held that
the termination order was innocuous in
nature.

7. In U.P. State Road Transport
Corporation vs. U.P. Public Service
Tribunal 2004 (1) AWC 335 a division
bench of this Court has considered several
decisions including the decision of the
Supreme Court in Pavendra Narain
Verma
vs.
Sanjay
Gandhi
Post
Graduate Institute of Medical Science
(2002) 1 SCC 520, Dhananjai v. Chief
Executive Officer (2003) 2 SCC 386,
Union of India v. A.P. Bajpai (supra)
etc. and has held that even if there are
some allegations against a temporary
employee that would not make the
termination order punitive.

8. Following the aforesaid decision
we find merit in this appeal. The appellant
was only a temporary employee and
hence has no right to the post vide
Triveni Shanker Saxena v. State of U.P.
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
480
AIR 1992 SC 496. The appeal is
dismissed.

 Appeal Dismissed
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.4.2004

BEFORE
THE HON'BLE R.K. AGARWAL, J.

Civil Misc. Writ Petition No.38453 of 1998

Rama Kant Dwivedi

...Petitioner
Versus
Presiding officer, Industrial Tribunal (I),
U.P., Allahabad and another ...Respondents

Counsel for the Petitioner:
Sri Sanjay Sharma
Sri Suresh Singh

Counsel for the Respondents:
Sri V.R. Agarwal
Sri Vivek Ratan
Sri Piyush Bhargava
S.C.

U.P.
Industrial
Disputes
Act,
1947-
Section 6 N- Applicability- Appointment
of petitioner as a trainee only as pay
evidence
on
record
including
appointment letter-held, he cannot be
treated as a workman as no relationship
of master and servant exists- Further,
petitioner
not
appointed
as
apprentice/trainee under any scheme
approved by State Government-Thus, he
cannot be treated as an apprentice
falling under definition of workman as
given in Act- Therefore, provisions of S.
6-N of Act, held, not applicable.

Thus, the petitioner who was appointed
as
a
trainee
only,
as
has
been
established from the record, cannot be
treated as a workman as no relationship
of master and servant exists.
Para 12

Applying the principle laid down in the
aforesaid decisions to the facts of the
present case, I find that the petitioner has
not
been
appointed
as
an
apprentice/trainee
under
any
scheme
approved by the State Government. Thus,
he cannot be treated as an apprentice
falling under the definition of the word
''workman' as given in the Act and,
therefore, the provisions of Section 6-N of
the Act would not be applicable.
Para 19
Case law discussed:
AIR 1957 SC 264
AIR 1985 SC 670
AIR 1994 SC 1824
1999 (81) FLR 222
AIR 1976 SC 66
1992 (65) FLR 203
1998 (80) FLR 399
W.P. 13481 of 1999, decided on 15.7.2003
AIR 1959 SC 1191
AIR 1979 SC 1356
AIR 1981 SC 1626
1997 (75) FLR 237
W.P.No. 3574 of 1997, decided on 13.3.1997
JT 2000 (8) SC 229
2003 (97) FLR 822
1991 (62) FLR 554

(Delivered by Hon'ble R.K.Agrawal, J.)

1. By means of the present writ
petition filed under Article 226 of the
Constitution of India, the petitioner, Rama
Kant Dwivedi, seeks a writ, order or
direction in the nature of certiorari calling
for the record of the case and to quash the
award dated 26th February 1998 passed
by the Industrial Tribunal (I), U.P.,
Allahabad, respondent no.1, said to have
been communicated to the petitioner vide
letter dated 28th August 1998, filed as
Annexure 6 to the writ petition, and other
consequential reliefs.

2. Briefly stated, the facts giving rise
to the present writ petition are as follows:-

3. The petitioner claims to have been
appointed as a Stenographer in the
establishment of the G.E.C. Alsthom