Full Judgment Text
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PETITIONER:
STATE OF UTTAR PRADESH AND ORS.
Vs.
RESPONDENT:
EX. PILOT OFFICER ARUN GOVIL
DATE OF JUDGMENT21/11/1989
BENCH:
VENKATARAMIAH, E.S. (CJ)
BENCH:
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 ap-
pointment.
Constitution of India, 1950: Article 226---Writ peti-
tion--Interim order by High Court--Effect of--Whether con-
trols jurisdiction of the High Court to dispose the writ
petition on merits.
HEADNOTE:
Pursuant to a scheme enacted for the benefit of ex-
military officials the appellant-State appointed the re-
spondent 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 exten-
sion. Since no order of extension had been sanctioned by
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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]
JUDGMENT:
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, inval-
idated 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 Gover-
nor 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 includ-
ing 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 exten-
sion were couched almost in the same language. The relevant
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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 condi-
tion 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 Recommen-
place of appoint- expiry dation
appoint- ment of con- extend
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 21-
242
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 accept-
ance 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 men-
tioned therein against the 1st respondent.
The respondent aggrieved by the said order of termina-
tion 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 Au-
guSt, 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 con-
sider the claim of the petitioner for continu-
ation 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.
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243
The respondent who was not satisfied by the order allow-
ing the Writ Petition as stated above preferred a Review
Petition before the High Court contending that he was enti-
tled 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 suc-
ceeds in his petition it would be made avail-
able 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 appoint-
ment and no observations in this regard are
being made by this Court.""
Aggrieved by the above order made on review which di-
rected 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 respond-
ent
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
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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 continu-
ation 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 con-
tinue 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 respond-
ent 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 Gover-
nor 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 con-
sider the claim of the petitioner for continu-
ation 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.
246
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