State of U.P. and others
Vs Rekha Rani
J U D G M E N T
Markandey Katju, J.
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.
learned counsel for the parties and perused the record.
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.
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 of the aforesaid decisions of this
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
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
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.
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
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.
on its earlier decision the High Court allowed the impugned writ petition No. 4886
of 1990 on 11.2.1992. Hence, this appeal.
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.
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.
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.
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
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.
(Gyan Sudha Misra)