We have heard the learned
counsel for the petitioner and the learned counsel for the respondents
on merits. Under challenge is the judgment and order dated 04.09.2017 passed by
the Division Bench of the High Court whereby the Special Appeal was
allowed after setting aside the judgment and order of the learned Single
Judge dated 31.10.2012 allowing the Writ Petition No.25718 of 2011. The result
of the impugned order is that the services of the petitioner who was
appointed as the temporary Collection100 Peon stood terminated, notwithstanding the subsequent
promotion earned by him on the post of Collection Amin on the strength of120 his continued working under the
interim order passed by the High Court.
The petitioner was appointed as a temporary Collection Peon
on 01.02.1996. The appointment letter clearly stated that the
services of the petitioner were purely temporary and that he could be
removed without any notice. The services of the petitioner as temporary
Collection Peon were terminated simply vide order dated 30.11.1998 with200 one month's notice and salary and
allowances. Aggrieved by the termination of his services, petitioner filed a
Writ Petition No.42216 of 1998. The said Writ Petition was dismissed on
15.07.1999 by240 the learned Single Judge with the observation that since the
petitioner is purely a temporary appointee, as is evident from
his appointment letter, he has no right to the post. Not satisfied by
the above decision, petitioner preferred Special Appeal No.740 of 1999 and
obtained an interim order on 19.08.1999 staying the300 operation of the order of
termination of his services. The petitioner, on the strength of the aforesaid
order, continued to function as temporary Collection Peon. In view of his
continued service, ignoring the fact that his services actually stood
terminated and that he was working only under an interim order, the
petitioner was promoted on 05.10.2009 on360 the post of Collection Amin by the District Selection Committee.
The Special Appeal was unfortunately dismissed in default on 25.08.2009. Consequent to the dismissal of the
Special Appeal, a detailed order was passed by the400 Sub-divisional Magistrate on
01.03.2011 notifying that as the services of the petitioner had been terminated
and the said order has attained finality with the dismissal of the Special
Appeal, consequently the promotion of the petitioner was meaningless.
Accordingly, petitioner stood reverted to the post of Collection Peon
and his service also stood determined as earlier. It may not be out of context to mention here that the petitioner after
the dismissal of the Special Appeal, for480 want of prosecution, applied for recall of the order and the
Special Appeal was restored on 11.03.2011 but500 again it was got dismissed as
withdrawn vide order dated 15.04.2011.
In short, the Special Appeal arising from the Writ Petition
challenging the termination of the petitioner stood finally dismissed with no
relief to the petitioner. The services of the petitioner as temporary
Collection Peon accordingly stood determined as far back as on 30.11.1998 which
became final and conclusive. Consequent to the order of the Subdivisional Magistrate dated 01.03.2011 notifying
termination of the services of the petitioner in the wake of the earlier
termination order becoming final, petitioner600 filed Writ Petition No.25718 of
2011 challenging the same. The said Writ Petition was allowed by the learned
Single Judge vide judgment and order dated 31.10.2012 observing that the
promotion640 granted to the petitioner was not hedged by any condition,
and therefore, once the petitioner had been promoted from the temporary post of
Collection Peon to the post of Collection Amin, his services were not liable to
be treated as determined. The aforesaid order of the learned Single Judge
was assailed by the State of UP & others by means700 of Special Appeal Defective No.392
of 2013 and the same has been allowed by the order720 dated 04.09.2017 on the ground
that the learned Single Judge had failed to appreciate that the continuance
of the petitioner as temporary Collection Peon and his consequential promotion
as Collection Amin was only on the basis of the interim order operating
in the Special Appeal, though the services of the petitioner stood terminated. The
court further observed that once the services of the petitioner stood
terminated on 30.11.1998 and the Writ Petition800 challenging the same had been
dismissed as also the Special Appeal thereof, the petitioner went out of
service and the very continuance of service of the petitioner on the strength
of interim order which merged in the final order of840 dismissal of Special Appeal, lost
all significance. The submission of learned senior counsel for
the petitioner is that the person who has continued for so long, maybe in
view of the interim order operating in his favour, cannot be thrown
out in a cursory manner when a conscious decision had been taken to promote him
as Collection Amin. Defending the900 impugned order, learned counsel for the respondents had
submitted that once the very foundation on which the petitioner was working had
gone, his continuance in service and consequential promotion is of no
effect. The petitioner has no right to continue in service either as Collection
Amin or as temporary Collection Peon after his termination was held to be valid
and960 was not
interfered with by the courts.
The facts, as narrated above, clearly establish that the
petitioner was appointed simply as a temporary Collection Peon and his services
were determined simpliciter within three years vide order dated
30.11.1998.1000 The said order, terminating the services of the petitioner, is
final and conclusive. It has not been disturbed by any court of
law. However, the petitioner continued to function as temporary Collection Peon
on the strength of an interim order passed in Special Appeal which was ultimately
dismissed. Therefore, any promotion given to the petitioner consequent to
his continuance in service on the strength of the interim order would automatically
fall to the ground once the Special Leave Petition is1080 dismissed and the termination
order attains finality. In view of the aforesaid facts and circumstances, we are of the opinion1100 that the view expressed by the Division
Bench of the High Court in allowing the appeal, is well within the four
corners of law which does not suffer from any material illegality or irregularity. The Division Bench has rightly set aside the
judgment and order of the learned Single Judge dated 31.10.2012 by which the
writ petition was allowed in complete ignorance of the fact that the
services of the petitioner stood determined long back and that the
petitioner is not entitled to any benefit on the basis of his
subsequent promotion which automatically1200 falls with the termination
attaining finality. Accordingly, we find no merit in the Special
Leave Petition and the same is dismissed. However, the respondents
shall not initiate any recovery of the salary drawn by the petitioner for
the period he has actually worked.1243
