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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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