Dinesh Kumar Arya vs State of U.P. and Others

Pradeep Kant and Ritu Raj Awasthi, JJ.—Heard Sri Abhishek Yadav, learned Counsel for the appellant, learned Standing Counsel appearing for the State and perused the record.

The present appeal has been filed challenging the judgment and order dated 17.2.2010, passed in Writ Petition No. 6789 (S/S) of 2005, Dinesh Kumar Arya v. State of U.P. and others, whereby the writ petition filed by the appellant-petitioner against the termination of his services as daily wages, was dismissed.

The facts of the present case are that the appellant-petitioner had filed W.P. No. 6789 (S/S) of 2005, praying for quashing the order dated 6.10.2005 with a direction to the Respondents to regularize the services of the petitioner-appellant on class-IV post of Liftman or on any other equivalent post and pay him salary/wages. By an interim order dated 5.12.2005, the termination order was stayed by this Court and in compliance of the same, the appellant-petitioner was allowed to work and was paid wages.

The appellant, in fact, was engaged as Liftman on daily wage basis in Balrampur Hospital, Lucknow on 1.9.1989. Since then the appellant was continuing in service with the satisfaction of the authorities concerned. However, on 1.1.1994, his services were abruptly terminated by an oral order. Feeling aggrieved, the appellant-petitioner had approached this Court by filing W.P. No. 976 (S/S) of 1994, in which by an interim order dated 23.2.1994, the opposite parties were restrained from delineating the appellant-petitioner from employment until further orders. It was also provided that the appellant-petitioner shall be allowed to work and shall be paid his salary regularly. After coming into force the U.P. Regularization of Daily Wages Appointments (on Group-D posts), Rules, 2001 (hereinafter referred to as ''Rules 2001''), the appellant-petitioner had moved a representation to the opposite parties for regularization of his services. By order dated 7.7.2005, the W.P. No. 976 (S/S) of 1994, was disposed of with a direction to the opposite parties to consider the case of the appellant-petitioner for regularization in accordance with Rules 2001. In compliance thereof, by order dated 6.10.2005, the representation of the appellant-petitioner was rejected on the ground that the appellant-petitioner was not appointed directly on daily wage basis and his appointment was on stopgap arrangement and as such he was not entitled for the benefit of Rules 2001.

Dissatisfied therewith, the appellant-petitioner has filed the writ petition No. 6789 (S/S) of 2005, challenging the said order dated 6.10.2005.

The learned Counsel for the appellant submitted that, in fact, the appellant has continued to work since his initial engagement i.e. w.e.f. 1.9.1989 and has completed approximately 21 years as a daily wager. As per Rules 2001, since he has been appointed prior to cut off date 29.6.1991 and as such he is entitled to be regularized on a Class-IV post.

It is further submitted that the learned Single Judge has failed to appreciate the veracity of the certificate issued by the concerned authorities certifying therein that the appellant had been working continuously since 1.9.1989 and his appointment was made after due approval from the competent authority. It is further submitted that in April, 2001, a junior person was regularized on the post of Liftman whereas the appellant, although senior to him was left out in a most arbitrary and mala fide manner, which clearly goes to show that the post was available with the opposite parties.

We have considered various submissions made by the Counsel for the parties. The order dated 6.10.2005, by which the representation of the appellant-petitioner was rejected clearly goes to show that the case of the appellant-petitioner was considered under the Rules 2001 and the authorities had come to the conclusion that since appellant-petitioner was not directly appointed on daily wage basis before the cut off date i.e. 29.6.1991 and his appointment was made under the stopgap arrangement, as such he is not entitled to be regularized in the service. It has been further observed that on the date of commencement of Rules 2001 i.e. 31.12.2001, no post of Liftman was vacant in the hospital as such the services of the appellant-petitioner cannot be regularized.

In view of the aforesaid position, the appellant was not entitled to be regularized in the services under the Rules 2001. The learned Senior Judge while considering the submissions made by the appellant-petitioner has rightly observed that the appellant-petitioner was engaged on short-term arrangement and as such in view of the law laid down by the Apex Court in the case of The Secretary, State of Karnataka and others v. Uma Devi and others, 2006 (109) FLR 826 (SC) : 2006 (42) AIC 935 (SC). any appointment through the side door would be violative of our constitutional scheme of equality contained in Articles 14 and 16 of the Constitution of India.

So far as the question of continuance for such a long period of approximately 21 years on daily wage basis of the appellant on the basis of the interim orders passed by this Court is concerned, the continuance of the appellant on the basis of the interim order can not be a ground to be retained in the service as that would amount to permitting the appellant to take the advantage of the Court''s order in spite of the fact that in writ petition the impugned order has been upheld and no infirmity or illegality was found by the Court. This Court Would not pass an order which would amount to permitting the authorities to act in the breach of rule or law.

It is well settled that the benefit received by a litigant based on an interim order passed by this Court, does not confer any right upon him since it is always subject to the final outcome of the writ petition and if the writ petition fails, the result would be as if no interim order was ever passed. This aspect of the matter has been considered by a Division Bench of this Court at Allahabad in the case of Smt. Vijay Rani v. Regional Inspectress of Girls Schools, Region-1, Meerut and others, 2007 (2) ESC 987. and this Court has held that no benefit can accrue to a litigant based on an interim order passed by this Court if ultimately the writ petition is dismissed. The relevant observations of the Court are reproduced as under:

If a person has enjoyed certain benefits under the interim order, he/she would not be allowed to claim any further benefit due to change in law pursuant to enjoyment of certain benefit under an interim order of the Court. A benefit under the interim order is tentative and subject to final decision in the matter and cannot go beyond the final decision.

In the absence of any legal right to hold the post or to continue, merely because a person has continued to serve the employer for long particularly under the interim order, would not attract even equitable relief if it is otherwise contrary to law and is violative of Article 16(1) of the Constitution of India.

For the foregoing reasons, the special appeal is bereft of merits and is liable to be dismissed. The judgment and order dated 17.2.2010, passed by the learned Single Judge in Writ Petition No. 6789 (S/S) of 2005, Dinesh Kumar Arya v. State of U.P. and others, is well merited one and does not warrant any interference of this Court.

The Special Appeal is accordingly dismissed. No order as to costs.