State Of U.P. & Ors vs Rekha Rani

1. This appeal has been filed against the judgment and order dated

28.7.2003 in CMWP No. 1213 of 1999 of the High Court of Judicature

at Allahabad.

2 2. Heard learned counsel for the parties and perused the record.

3. The respondent has a degree of B.A.M.S.(Bachelor of 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.

4. It 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 Rattanlal and others vs. State

of Haryana and others AIR 1987 SC 478 and in Rabinarayan

Mohapatra 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 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

3

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 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

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.

4 5. The respondent herein did not work after 16.4.1991 in 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 in service and parity in wages as regular employees.

6. It is alleged that an SLP(C) No. 25503 of 1995 was filed before

this Court against the Allahabad High Court judgment 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 alleged that after the dismissal of the

said SLP the writ petitioner(s) should have been regularized in service,

but that was not done.

7. It is alleged that others similarly situated have been regularized

e.g. Dr. Sudha Trivedi in pursuance of the 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.

5 8. A 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 could not claim regularization

particularly when Chikitsa Adhikari comes under the purview of U.P.

Public Service Commission and regular appointment can only be made

on the recommendation of the said Commission.

9. Relying on its earlier decision the High Court allowed the

impugned writ petition No. 4886 of 1990 on 11.2.1992. Hence, this

appeal.

10. We 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.

6 11. A 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.

12. It has been held in a recent decision of this Court in 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 SCC 1 that the High Court in exercise of its power under

Article 226 cannot regularize an employee. Merely because some

others had been regularized does not give any right to the respondent.

An illegality cannot be perpetuated.

13. Also, 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 SCC

691. The respondent's service was not terminated as a measure of

punishment. Hence no opportunity of hearing was necessary for

terminating her service. The direction for her reinstatement is not

sustainable as she was only a temporary employee and hence had no

right to the post.

7 14. For the reasons aforementioned, 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.

...................................J.

(Markandey Katju)

...................................J.

(Gyan Sudha Misra)

New Delhi;

30th March, 2011