State of U.P. and Ors. v. Rekha Rani

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1017 of 2007. From the Judgment and Order dated 28.7.2003 of the High Court of Judicature at Allahabad in Civil Misc. Writ Petition No. 1213 of 1999. S.R. Singh, Niranjana Singh and Prema Singh, Prema Singh for the Appellants. Dinesh Kumar Garg for the Respondent. The Judgment of the Court was delivered by MARKANDEY KAT JU, J.

1This appeal has been filed against the judgment and orde_r dated 28.7.2003 in CMWP No. 1213 of 1999 of the rtigh Court of Judicature at Allahabad.

2Heard learned counsel for the parties and perused the cecord. [MARKANDEY KAT JU, J.) .

3The respondent has a degree of B.A.M.S.(Bachelor of A Ayurvedic Medicine and Surgery). She alleged in her writ petition filed in the High Court that she had all the requisite qualifications to be appointed as Medical Officer in the U.P. State Services. She was appointed vide order dated 1.8.1997 under the Anshkalik (temporary) Scheme of the State Government and was posted at a Government Female Hospital in Bulandshahar district.

4It is alleged in her writ petition that to avoid the claim of regular service of the writ petitioner the State Government acted against the spirit of law laid down by this Court in Rattan/al and others vs. State of Haryana and others AIR 1987 SC 478 and in Rabinarayan Mohapalra vs: State of Orissa and others AIR 1991 SC 1286 and other decisions given from time to time by this Court, declaring illegal the policy of making ad hoc appointment having time bound period and thereafter D terminating the services of the appointee and after a short - interval giving re-appointment. It was alleged that artificial break of service was given by the State Government which is against. the spirit of the aforesaid decisions of this Court. The appellant was appointed from 1.8.1987 to 31. 7 .1988, then from 3.8.1988 to 2.8.1989, then from 4.8.1989 to 3.8.1990 and from 7.8.1990 for a period one year.

It is also alleged that the appellant's work · was always found to be satisfactory, and certificates to this effect were given by the Chief Medical Officer, Bulandshahar which were marked as Annexure-4 to the writ petition filed in the High Court. It is alleged that others similarly situated were also given artificial breaks in service. It is alleged that Anshkalik doctors filed a writ petition being Civil Writ Petition No. 4886 of 1990 before the Allahabad High Court (Lucknow Bench) which was allowed on 11.2.1992 and the said judgment G became final. The High Court held that there was violation of Articles 14 and 16 of the Constitution of India, and that the claim of the writ petitioner(s) for regularization shall be considered within six months from the date of production of copy of the said judgment before the respondent (the State Government).

The A writ petitioner (respondent in the present appeal) has alleged that she is entitled to the benefit of the said decision, although she had not filed any individual writ petition.

5The respondent herein did not work after 16.4.1991 in . 8 the State service as her services came to an end on that date. She made several representations to the government authorities but to no avail. It is alleged that the State government arbitrarily terminated the service of the respondent on 16.4:1991. It is alleged that she was entitled to regularization C in service and parity in wages as regular employees.

6It is alleged that an SLP(C) No. 25503 of 1995 was filed before this Court against the Allahabad High Cou11 1udgment and order dated 11.2.1991 passed in writ petition No. 4886 of 1990, but the same was dismissed on 19.2.1996. It is also allegE~d that after the dismissal of the said SLP the writ petitioner(s) should have been regularized in service, but th:-:lt was not done.

7It is alleged that others similarly situated have been regularized e.g. Dr. Sudha Trivedi in pursuance of th~ order dated 21.3.1996 in writ petition No. 6528 of 1992. Similarly, Dr. Lilawati Tripathi was also regularized in service. Hence, it is alleged that the writ petitioner (respondent herein) has been discriminated against.

8A counter affidavit was filed before the High Court in which it was stated that the respondent herein had been appointed as a temporary employee from time to time, and the last appointment was given on 7.8.1990 for one year. She was not in service w.e.f 16.4.1991. Hence, it was alleged that she t;:ould not claim regularization particularly when Chikitsa _ Adhikari cemes under the purview of U.P. Public Service Commission and regular appointment can only be made on the recommendation of the said Commission.

9Relying on its earl!er decision the High Court allowed [MARKANDEY KAT JU, J.] the impugned writ petition No. 4886 bf 1990 on 11.2.1992. Hence, this appeal.

10We have perused the order of this Court dated 19.2.1996 passed in the SLP filed against the judgment and order of the High Court in writ petition No. 4886 of 1990 and we find that there is no discussion on the merits of the case. Thus, the aforesaid decision of this Court does not amount to a precedent and the respondent can take no benefit from the same.

11A regular appointment can only be made after selection by the U.P. Public Service Commission. Also, admittedly, the respondent was only a temporary employee and had not worked after 16.4.1991.

12It has been held in a recent decision of this Court in 0 State of Rajasthan vs. Daya Lal 2011 (2) SCC 429 following the Constitution Bench decision of this Court in State·of Karnataka VS. Umadevi (2006) 4 sec .1 that 'th~ High. Couit . in exercise of its power und~r Article 226 canfl<>t regufariz.~'an employee. Merely because some others had been regulaiiZ:ed does not give any right to the respondent. An illegality cannot be perpetuated.

13Also, it is well-settled that a temporary employee has no right to the post vide State of U.P. vs. Kaushal Kishore Shukla (1991) 1 sec 691. The r~spondent's service was not terminated as a measure of punishment. Hence no opportunity of hearing was necessary for terminating her service. The direct.ion for her reinstatement is not sustainable as she was only a temporary empl,oyee and hence had no right to the post. .

14For the reasons aforemeni.0ned, the appeal is ~ .. · · allowed. The impugned judgment and order of the High Court · is set aside and the writ petition is dismissed. There shall be no order as to costs. B.B.B. Appeal allowed. H