Krishna Kant Katiyar vs State of U.P. and Others

Sudhir Agarwal, J.—This is an application seeking review of my order dated 23.7.2013 dismissing the writ petition on merits. It is contended that petitioner has continued in service pursuant to interim order dated 24.7.1996 during the pendency of this writ petition, but due to dismissal of writ petition, he is now being sought to be terminated which fact has not been noticed by this Court. He also said that since he has continued pursuant to interim order passed by this Court, Settlement Officer (Consolation) on 11.7.2002 also declared him permanent and this fact ought to have beer considered by the Court.

The submission is thoroughly misconceived. Once the petitioner has ceased to work and stood already terminated, whereagainst he came to this Court, his continuance pursuant to an interim order passed by this Court will not confer a new right upon him which he did not possess at the time of filing the writ petition, particularly, when the writ petition itself has ultimately failed.

Mere fact that an interim order was passed and incumbent was continuing on the post, that would not confer any benefit or cause of action to petitioner if ultimately he does not succeed in the writ petition.

A Division Bench of this Court presided by Hon''ble C.K. Prasad, C.J. (as His Lordship then was), while rejecting the claim of appellant to continue in service on the basis of long continuance pursuant to an interim order passed by this Court, in Special Appeal No. 1818 of 2009 (Farhat Jahan v. State of U.P. and others) decided on 26.11.2009 observed as under:

She had continued in service by virtue of an interim order passed by this Court. This continuance of the petitioner during the pendency of the writ petition is a litigious continuance in service, which will not enure to her benefit. The Division Bench of this Court had the occasion to consider this question in Special Appeal No. 926 of 2002 (Sunil Kumar v. The Regional Assistant Director of Education (Basic), 12 Circle, Moradabad), which reads as follows

Having appreciated the rival submission, we do not find any substance in the submission of Mr. Saxena and the decision relied on shall have no bearing in the facts of the present case. As stated earlier, the petitioner was appointed by order dated 22.4.1987 on temporary basis and the order of appointment clearly indicated that his service can be terminated without any notice or prior information. His service was terminated in exercise of power under Rule 3 of the Rules 1975 by order dated 5.9.1988. Petitioner has, nowhere, averred as to the process of appointment, which was followed while giving him temporary appointment. True it is that by virtue of interim orders passed by this Court, he continued in service but such continuance is nothing but a "litigious employment". Once it is held so, mere continuance in service for a long period would not clothe him with any right. The view, which we have taken, finds support from the judgment of the Supreme Court in the case of Umadevi (supra) as also Surindra Prasad Tiwari (supra).

In view of aforesaid, we are of the opinion that the litigious continuance in service shall not enure to her benefit.

It is well established that act of the Court shall prejudice none. The service rendered pursuant to an interim order would not give any benefit to petitioner. This issue has also 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-I and Others and the Court held as under:

An interim order passed by the Court merges 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 Uttar Pradesh, Lucknow and Others, 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 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) Sri Ram Charan Das Vs. Pyare Lal,

In Shyam Lal Vs. State of Uttar Pradesh, Lucknow and Others, 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 date it was passed.

(B) Shyam Manohar Shukla Vs. State of U.P. and Others,

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 Vs. State of Uttar Pradesh, Lucknow and Others, and Sri Ram Charan Das Vs. Pyare Lal,

(C) M/s. Kanoria Chemicals and Industries Ltd. Vs. U.P. State Electricity Board and other,

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.

In Raghavendra Rao Etc. Vs. State of Karnataka and Others Etc., 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....

On the contrary, I find that order passed by Settlement Officer (Consolidation) declaring the petitioner permanent is patently without jurisdiction and, the said Officer definitely has committed a serious misconduct and this matter need be seen in disciplinary side by respondent No. 1.

The application is rejected. A copy of this order shall be forwarded by Registrar General to respondent No. 1 for information and compliance.