State of
Uttar Pradesh & Ors Vs. Arun Govil [1989] INSC
356 (21 November 1989)
Venkataramiah,
E.S. (Cj) Venkataramiah, E.S. (Cj) Singh, K.N. (J) Kasliwal, N.M. (J)
CITATION:
1990 AIR 458 1989 SCR Supl. (2) 239 1989 SCC Supl. (2) 593 JT 1989 (4) 414 1989
SCALE (2)1160
ACT:
Service
Law--Appointment in the nature of contract and for a specified
period--Termination of service before the expiry of specified period--Validity
of--Appointee--Whether has a right to continue beyond the specified term of
appointment.
Constitution
of India, 1950: Article 226---Writ
petition--Interim order by High Court--Effect of--Whether controls jurisdiction
of the High Court to dispose the writ petition on merits.
HEAD NOTE:
Pursuant
to a scheme enacted for the benefit of exmilitary officials the appellant-State
appointed the respondent on 20.8.1979 as Secretary Zila Sainik Board on
contract basis for a specified period which was further extended upto
30.8.1985. On 29.3.1985 the services of the respondent were terminated.
The respondent
filed a writ petition before the High Court challenging the termination order.
By an order dated 24.3.1988 the High Court set aside the termination order
holding that the respondent was entitled to salary upto the period he was
entitled to remain in service i.e. upto 30.8.1985.
The
respondent preferred a Review Petition before the High Court contending that
pursuant to the interim order dated 10.7.1986 passed by the High Court he was
entitled to be reinstated in service even though there was no order of
extension of service. By an order dated 26.7.1988, the High Court allowed the
Review Petition directing the appellant State to reinstate the respondent in
service. Hence this appeal by the State.
Allowing
the appeal and setting aside the order passed on Review, this Court,
HELD:
1. In the instant case, the appointment of the respondent was indisputably in
the nature of contract and under tile order of appointment he was entitled to
continue in office in the post in question till 30th of August, 1985 and not
beyond that date unless there was a further extension. Since no order of
extension had been sanctioned by 240 the Governor beyond 30th August, 1985 the respondent was entitled to the
salary and allowances due to him till 30th of August, 1985 if tile order of
termination of service was found to be an invalid one. [242B; 244C]
1.1
The High Court was right in disposing of the Writ Petition on 24.3.1988
declaring that the respondent was entitled to salary upto the period he was
entitled to remain in service, i.e. 30th August, 1985. But it was not right in making an
order on Review on 26.7.1988 relying upon the interim order dated 10.7.1986
which' in the circumstances could not have the effect of controlling the
jurisdiction of the High Court to dispose of the Writ Petition on merits as it
did on 24.3.1988. [245A-B]
2. The
interim order passed by the High Court did not and could not amount to a
direction that the respondent was entitled to be reinstated in service
irrespective of the merits of the case and the extent of his right. The order
passed on review is wholly unsustainable. [245C]
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 4649 of 1989.
From
the Judgment and Order dated 26.7.1988 of the Allahabad High Court in Review
Application No. 27(W) of 1988.
Anil
Dev Singh and Mrs. S. Dikshit for the Appellants.
Yogeshwar
Prasad, Vijay Hansaria, Sunil K. Jain, S.K. Jain for the Respondents.
The
Judgment of the Court was delivered by VENKATARAMIAH, CJ. The Respondent, Arun Govil
had been granted a permanent commission in the Indian Air Force and was working
as a Pilot Officer. In the year 1972 he was declared unfit by a Medical Board
and was, therefore, invalidated from I.A.F. The Government of India issued a
scheme for the benefit of ex-military officials. The State of Uttar Pradesh also adopted the same scheme. Under
that scheme the ex-military officials were appointed on Contract basis for a
fixed term which could be extended from time to time subject to the suitability
of the official concerned but not beyond 58 years of age. Pursuant to the said
scheme the State of Uttar
Pradesh appointed the
respondent as the Secretary, Zila Sainik Board, Unnao on 20th of August, 1979.
Paragraph 2 of the said order of appointment issued on 20th August, 1979 reads
thus:
"The
appointment shah be on contract for a period of one 241 year w.e.f. the date of
assumption if it is not terminated earlier by giving a one month's notice by
the Hon'ble Governor or on paying one month's salary in lieu thereof or by
giving one month's notice, by the Officer." The respondent was required to
furnish his acceptance of the terms and conditions contained in the said order
including the above term relating to the period of appointment and on his
accepting the terms and conditions he was appointed as the Secretary in the
District Soldiers Board in the district of Unnao in the State of Uttar
Pradesh'. The said term was extended retrospectively, first upto 20th August, 1982 by an order passed in September,
1981 and it'was again extended upto 31st March, 1983 by an order made in February, 1983.
Again the term was extended upto 30th of August, 1985 by an order dated 1st June, 1983. All these orders of extension were
couched almost in the same language. The relevant part of the last of such
orders, namely, the order dated 1st June, 1983 reads as follows:
"Sir,
With reference to your letter No. 1020/Sa. Pa.A.D.M./141, Dated 31.3.1982 on
the above subject I am directed to say that the terms of the officers mentioned
under para-2 who were appointed w.e.f. the date mentioned in para-4 (has
expired). The Governor is therefore pleased to accord his sanction to extend
the period of the contract upto the period mentioned under para 5 subject to
the condition that their service tenure shall expire on completion of 58 years
of age in case the same is completing earlier during the extended period.
Sl.
No. Name and Date of Date of Recommenplace of appointexpiry dation appointment
of conextend ment tract the contract 1to 12 -13 Ex-Pilot 21.8.79 31.3.83 1.4.83
Arun Govil, 30.8.85 Unnao 14 to 21242
2.
During the extended period of the contract conditions of service of officers
shall remain same as are mentioned under their Appointment Order. Letters of
acceptance of relevant conditions of service to be obtained from these officers
must be submitted to the Government at an early date." It is thus seen
that the appointment of the respondent was indisputably in the nature of
contract and under the last order of appointment refened to above he was
entitled to continue in office in the post in question till 30th of August,
1985 and not beyond that date unless there was a further extension.
But on
29.3.1985 the service of the 1st Respondent was terminated by the issue of a
notice and payment of one month's salary. The order was to be effective from
the date of receipt of termination order and no charges were mentioned therein
against the 1st respondent.
The
respondent aggrieved by the said order of termination filed a Writ Petition on
the file of the High Court of Allahabad in Writ Petition No. 3 164 of 1985. A
Division Bench of the High Court found that the order of termination that had
been served on the respondent was an invalid one since it had been issued on
the basis of Vigilance Report and no opportunity had been given to the
respondent to show cause why such action should not be taken against him. It is
not necessary to set out all the reasons given by the High Court for setting
aside the order of termination. The High Court, however, held that the termination
order could not be sustained and the Writ Petition was liable to be allowed.
The
High Court further issued a direction to the effect that the respondent was
entitled to salary upto the period he was entitled to remain in service. In the
instant case the respondent was entitled to be in service till 30th of AuguSt,
1985 unless there was a further extention. In the Penultimate paragraph of the
judgment the High Court further stated:
"It
is open for the opposite parties to consider the claim of the petitioner for
continuation in service or of fresh appointment and no observations in this
regard are being made by this Court." The judgment was delivered on
24.3.1988.
243
The respondent who was not satisfied by the order allowing the Writ Petition as
stated above preferred a Review Petition before the High Court contending that
he was entitled to be reinstated in service on the pronouncement of the
Judgment on 24.3. 1988 notwithstanding the fact that his term of office had
come to an end on 30th of August, 1985 as stated above and no further order of extention
had been passed by the Governor. In support of the Review Petition the
respondent relied on an interim order which had been passed by the High Court
during the pendency of the Writ Petition on 10th of July, 1986 which reads
thus:
"The
post will be kept vacant and in case the petitioner succeeds in his Petition it
would be made available forthwith to the petitioner by way of an
appointment." The contention of the respondent was that the said interim
order entitled him to be reinstated in service irrespective of the fact whether
the Governor had extended the period of his appointment beyond 30th of August,
1985.
The
High Court allowed the Review PetitiOn on 26.7.1988 and made an order
reinstating the Respondent in service which reads as follows:
"This
is an application for review of our Judgment dated 24.3.1988 by which we
allowed the Writ Petition filed by the Petitioner with certain directions. It
seems that when the writ petition was decided, our attention was not drawn
towards the interim order dated 10.7.1986 passed by learned single Judge in
which it was provided that one post will be kept vacant and in case the
petitioner succeeds in his petition it would be made available forthwith to the
petitioner by way of his appointment. The petitioner has pointed out inaccuracy
in the second paragraph of the operative part of the judgment which says that:
"It is open for the opposite parties to consider the claim of the
petitioner for continuation in service or of fresh appointment and no
observations in this regard are being made by this Court."" Aggrieved
by the above order made on review which directed the State of Uttar Pradesh, the appellant herein, to reinstate
the respondent in service, the State Government has filed this apeal by special
leave.
It is
not disputed that the scheme under which the respondent 244 had been appointed
provided for an appointment by contract for a specified term which could be
extended from time to time and that the term of the respondent had been
extended on different occasions after his first appointment and he was not
entitled to continue in service beyond 30th August, 1985 unless there was a
further extension. Clauses 6 & 7 of the first order of appointment stated
that the respondent was entitled to the leave admissible for temporary
employees and for other matters he was to be treated as a temporary Government
employee during the tenure of his office. The appellant-government never
accepted the position that the respondent was entitled to be treated as a
regular employee who had a vested right to continue to hold the post till he
attained 58 years of age. The true position that emerges from the material on
record is that the respondent was employed only under a contract which
specified the term of his appointment which extended only Upto 30th of August,
1985. Since it is admitted that no order of' extension had been sanctioned by
the Governor beyond 30th August, 1985, the respondent was entitled to the
salary and allowances due to him till 30th of August, 1985 if the order of
termination of service served on him on 29.3. 1985 was found to be an invalid
one. It is on this basis that the High court had while setting aside the order
of termination by its order dated 24.3.1988 directed that the respondent was
entitled to salary upto the period he was entitled to remain in service and
further observed that it was open for the opposite parties to consider the
claim of the respondent for continuation in service or of fresh appointment and
no observations in this regard were made by the Court. A reading of the
Judgment of the High Court dated 24.3.1988 shows that the respondent had not
urged before the High Court that the order of appointment issued in his case
was not in the nature of a contract and the subsequent orders extending his
period of appointment till 30th of August, 1985 were liable to be ignored and
that he should be treated as a person regularly appointed in Government service
entitled to continue till he completed the age of 58 years. Even the order
passed on Review on 26.7.1988 does not make out that the respondent had put
forward at that stage such a case. His only case was that the interim order
that had been passed on 10.7.86 entitled him to be reinstated in service even
though there was no order of extension of service. If the respondent was really
aggrieved by the Judgment dated 24.3.1988 he should have preferred an appeal
before this Court and that he did not do but on the other hand he proceeded to
file a Review Petition claiming to be reinstated in service on the slender
ground that the interim order conferred on him a right to continue in service
beyond 30th of August, 1985 even though his service had not been extended by
the Governor of Uttar Pradesh.
245 In
the circumstances, we feel that while the High Court was right in disposing of
the Writ Petition on 24.3. 1988 declaring that the respondent was entitled to
salary upto the period he was entitled to remain in service, i.e., 30th August,
1985 it was not right in making an order on Review on 26.7.1988 relying upon
the interim order dated 10.7.1986 which in the circumstances could not have the
effect of controlling the jurisdiction of the High Court to dispose of the Writ
Petition on merits as it did on 24.3.1988. We, therefore, set aside the order
dated 26.7.1988 passed by the High Court on review and restore the Judgment
dated 24.3.1988 passed in the Writ Petition. The interim order did not and
could not amount to a direction that the respondent was entitled to be reinstated
in service irrespective of the merits of the case and the extent of his right.
The order passed on review is wholly unsustainable.
We,
however, make it clear that what we have stated above does not affect in any
way what the High Court has stated in the penultimate paragraph of the Judgment
dated 24.3.1988 which reads thus:
"It
is open for the opposite parties to consider the claim of the petitioner for
continuation in service or the fresh appointment and no observations in this
regard are being made by this Court." The appeal is accordingly allowed.
No costs.
T.N.A.
Appeal allowed.
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