# Suresh Prasad v. District Magistrate and others

- **Citation:** (2009) 2 ILRA 676
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-07-27
- **Case number:** Civil Misc. Writ Petition No. 44297 of 1992
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-prasad-v-district-magistrate-and-others-41417
- **Pages:** 5

## Headnote

Constitution of India-Article-226: Writ of
Mandamus -petitioner was appointed for
42 days-extended from time to timeafter 17.6.1992 no extension grantedappointment made dehores the Ruleworking pursuant to interim order for
four month only-no mandamus can be
issued-either for continuance in service
or regularization.

Held: Para 15

Something which is not conferred by
rules cannot be given by means of a
judicial order since it would amount to
direct the respondents to act in the teeth
of
the
statutory
rules
which
is
impermissible, therefore, this request is
also rejected.
Case law discussed:
2009 (1) UPLBEC 321, 1975 (2) SCC 831, 1992
SC 2070, 2007(2) ESC 987, 1975 Allahabad
280, 1986 (4) LCD 196, 1994 Allahabad 273,
2009 (2) SC 520, 2006(4) SCC 1, 2009(6) SC
463

## Text

676 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

The writ petition lacks merit and is
accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.07.2009

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 44297 of 1992

Suresh Prasad

...Petitioner
Versus
District Magistrate & others ...Respondents

Counsel for the Petitioner:
Sri Dr. R.G. Padia
Sri Prakash Padia

Counsel for the Respondent:
S.C.

Constitution of India-Article-226: Writ of
Mandamus -petitioner was appointed for
42 days-extended from time to timeafter 17.6.1992 no extension grantedappointment made dehores the Ruleworking pursuant to interim order for
four month only-no mandamus can be
issued-either for continuance in service
or regularization.

Held: Para 15

Something which is not conferred by
rules cannot be given by means of a
judicial order since it would amount to
direct the respondents to act in the teeth
of
the
statutory
rules
which
is
impermissible, therefore, this request is
also rejected.
Case law discussed:
2009 (1) UPLBEC 321, 1975 (2) SCC 831, 1992
SC 2070, 2007(2) ESC 987, 1975 Allahabad
280, 1986 (4) LCD 196, 1994 Allahabad 273,
2009 (2) SC 520, 2006(4) SCC 1, 2009(6) SC
463

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

1. Heard Dr. R.G. Padia, learned
Senior Advocate assisted by Sri Prakash
Padia for the petitioner and learned
Standing Counsel for the respondents.

2. The petitioner has sought the
following the reliefs:

"A. a writ, order or direction,
including a writ in the nature of
Mandamus commanding the respondent
to permit the petitioner to continue as
Class IV employee till such time regular
selection is made by the respondent in
case
a
permanent vacancy exists in respect of a
Class IV post with respondent no. 3 or in
case any person junior to the petitioner is
being permitted to work as Class IV
employee;
B. a writ, order or direction
including a writ in the nature of
mandamus commanding the respondent to
pay salary to the petitioner month-bymonth as and when it falls due along with
arrears of salary w.e.f. 18.6.1992;
C. a writ, order or direction
including a writ in the nature of
mandamus commanding the respondents
to pass appropriate orders in respect of
the judgment passed by this Hon'ble
Court in a writ petition filed by the
petitioner dated 31.08.1992;
D. any
other
writ,
order
or
direction, which this Hon'ble Court may
deem fit and proper in the circumstances
of the case;
E.
 award costs of the writ petition
throughout to the petitioner."

3. It appears that the petitioner was
engaged for a limited tenure from time to
time and his last engagement was for the
2 All] Suresh Prasad V. District Magistrate and others

677
period of 07.05.1992 to 17.06.1992 and
thereafter he was not required.

4. The petitioner is alleging that the
sub-treasury officer, bareya, district Ballia
had
made
a
recommendation
for
continuance of petitioner on 21.07.1992
but no order thereon was passed by Senior
Treasure Officer. Thereafter the petitioner
filed Writ Petition No. nil of 1992 and
this Court disposed of the writ petition on
31.08.1992, passing the following order:

"The petitioner was appointed as a
peon on 14.8.1991 for a period of 42 days
only. His services were extended from
time
to
time.
Thereafter
a
recommendation has been made by the
respondent no. 3 on 21.7.1992 to
respondent no. 2 for the extension of
services. It appears that no order has
been passed. The petitioner's case is that
he has been working continuously but his
salary has not been paid after 17th June,
92.
The petitioner has prayed for issue of
a writ in the nature of mandamus
directing the respondent to regularize his
service and pay the salary. This relief
cannot be granted by this Court unless the
respondent no. 2 passes a final order on
the recommendation made by respondent
no. 3.
Accordingly
we
direct
the
respondent no. 2 to pass a suitable order
on the recommendation made by the
respondent no. 3 on 21.7.92 within a
period of one month from the date of
filing of a certified copy of this order
before him.
With this observation, the writ
petition is being disposed of finally.
 A certified copy of this order may be
issued to the learned counsel for the
petitioner within a week on payment of
usual charges.

5. Pursuant thereto Senior Treasury
Officer, Ballia passed the order dated
18.11.1992 observing that there is no
requirement of the petitioner for further
engagement and his appointment being a
tenure appointment has already ceased by
efflux of time. This order has not been
challenged by the petitioner. On the
contrary, only a writ of mandamus has
been sought to continue him as Class IV
employees and pay him salary. It is not
disputed by learned counsel for the
petitioner that regular appointment on
Class-IV post is governed by statutory
Rules i.e. Group 'D' Employees Service
(U.P.) Rules, 1985 but the petitioner has
not
been
appointed
following
the
procedure laid down therein.

6. However, Sri Padia contended
that the termination of petitioner is illegal
inasmuch as several allegations have been
made for the petitioner's conduct in the
counter affidavit and, therefore, in view of
this Court's decision in Tasneem Fatime
(Smt.) Vs. State of U.P. and others,
2009(1)
UPLBEC
321
and
the
Constitution Bench decision in Shamsher
Singh Vs. State of Punjab, 1975 (2)
SCC 831 the petitioner's termination
being stigmatic is liable to be set aside.

7. The submission, in my view, is
thoroughly misconceived. Here it is not a
case of termination of petitioner as such.
The petitioner was appointed on tenure
basis and after expiry of the period the
appointment comes to an end by efflux of
time. The Apex Court in the case of
Director, Institute of Management
Development,
U.P.
Vs.
Pushpa
Srivastava, AIR 1992 SC 2070 has held,
678 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

where the appointment is made on tenure
basis there is no requirement to pass an
order of termination since it is automatic
by efflux of time. Here the authority
concerned was to consider whether there
was any requirement of petitioner for the
further engagement which would have
necessitated a same fresh order of
appointment.

8. It is next submitted that pursuant
to an interim order passed by this Court
the petitioner is continuing and therefore,
it will be extremely harsh if as a result of
dismissal of writ petition his service
would be dispensed with after 17 years.
The petitioner has already passed the
maximum age and he now cannot get any
alternative employment, therefore, this
Court must permit him to continue in
service.

9. It is no doubt true that on
01.12.1992 an interim order was passed
by this Court to the following effect:

"For a period of four months from
today the operation of the order dated
18.11.1992
shall
remain
stayed.
Petitioner will be entitled for salary for
the period for which he actually worked."

10. According to my understanding
the said order nowhere direct the
respondent to continue the petitioner in
service for the reason that the order dated
18.11.1992 did not terminate him but only
says that his term having completed, he
cease to be in employment and the
department does not require his service.
Even if this order was stayed, it would not
automatically result in treating as if a
fresh order of appointment was issued.
This order also does not say any where
that the petitioner shall be allowed to
continue to function. With respect to
payment of salary, it only says that the
petitioner will be entitled for salary for
the period for which he actually work.
The petitioner, therefore, was not granted
any interim order by this Court to
continue in service. Sri Padia, however,
submitted that construing this Court's
decision by the respondents as if he was
entitled to continue, the respondent
actually allowed him to continue and till
today he is continuing.

11. Be that as it may, it is well
established that act of the court shall
prejudice none. The services 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 merge 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
2 All] Suresh Prasad V. District Magistrate and others

679
compulsory retirement. It must in the
circumstances take effect as if there was
no interim order. "

The
same
principal
has
been
reiterated in the following cases:
(A) AIR 1975 Allahabad 280 Sri
Ram Chandra 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 order it was passed."

(B) 1986 (4) LCD 196 Shyam
Manohar Shukla V. State of U.P.

"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."
12. 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.........."

13. It is not the case of the petitioner
that even in this interregnum period his
selection has been made on regular basis.
That being so, the law laid down by the
Constitution Bench of the Apex Court in
Secretary, State of Karnataka Vs. Uma
Devi, 2006 (4) SCC 1 that any such
indulgence cannot be granted by the Court
of continue the petitioner in service would
squarely apply in this case also.

14. Learned counsel for the
petitioner at this stage requested that in
case the respondents proceed to hold
regular selection, the petitioner if apply,
may also be considered by granting
relaxation in age to the extent he has
served the department. However, from
perusal of Rule 32 of 1985 Rules that no
power has been conferred upon the State
Government to relax the rules pertaining
to recruitments. In State of Uttranchal
Vs. Alok Sharma and others, JT 2009
(6) SC 463 considering the matter of
relaxation of Rules the Apex Court said:

"An authority, unless a power is
conferred on it expressly, cannot exercise
a statutory power. Power of relaxation
must be specifically conferred. Such
power 16 having been envisaged to be
conferred by reason of a rule made under
680 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

the proviso appended to Article 309 of the
Constitution of India, the contention of
the learned counsel for the respondents
that relaxation must be deemed to have
been granted cannot be accepted. "
"The discretionary jurisdiction could
be exercised for relaxation of age
provided for in the rules and within the
four corners thereof. "

15. Something which is not
conferred by rules cannot be given by
means of a judicial order since it would
amount to direct the respondents to act in
the teeth of the statutory rules which is
impermissible, therefore, this request is
also rejected.

16. The writ petition, therefore, lacks
merit and is accordingly dismissed.
Interim order, if any, stands vacated.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.08.2009

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No.41029 of 2009

Chandrajeet Ram

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

Counsel for the Petitioner:
Sri Dinesh Kumar Pandey

Counsel for the Respondents:
Sri N.P. Pandey
S.C.

U.P. Consolidation of Holding Rule 1956Rule-109-A-Mutation
of
name-order
alleged to be passed by consolidation
authorities prior to 40 years-petitioner
kept
mum
during
35
years-heldprovisions
of
Rule
109-A
utterly
misused-can
not
be
invoked
after
notification
of
section
52-court
expressed its great concern-and warned
the District authorities to be more
vigilant in future-petition dismissed.

Held: Para 3

It is also the experience of the court that
Rule 109-A is being utterly mis-used. It
is not meant for rampant use. It cannot
be
invoked
after
notification
under
Section 52 of the Act to enforce orders
passed before the notification.

(Delivered by Hon'ble S.U. Khan, J.)

1. The court is daily coming across
such matters where people come out with
certified copies of orders alleged to have
been passed 25 to 40 years before by
Consolidation courts and start asserting
that the order must be mutated. In most of
the cases such certified copies are forged.
In normal course of things if an order is
passed by Consolidation court in favour
of a person then either it is implemented
forthwith in normal course or he will
immediately take steps for getting that
mutated in the revenue records. A wait of
more than 12 years always raises a grave
doubt regarding the genuineness of the
order sought to be enforced. In most of
such cases certified copies of non existent
orders
are
manufactured
after
the
loss/weeding out of original records.

2. In the instant case the fantastic
argument of the petitioner is that on
21.7.1973 some order was passed by the
consolidation
court
in
his
favour,
however,
due
to
negligence
of
consolidation authorities the said order of
1973 was not mutated in the revenue
records. For the said purpose for the first
time petitioner filed application on