STATE OF U.P. AND ORS.versusREKHA RANI

                        [2011) 3 S.C.R. 1154


A                    STATE OF U.P. AND ORS.
                                  v.
                            REKHA RANI
                  (Civil Appeal No. 1017 of 2007)
                         MARCH 30, 2011
B
    [MARKANDEY KATJU AND GYAN SUDHA MISRA, JJ.]

        Service Law:
        Regularization - Claim for - Writ petition - Held: The
C High Court in exercise of its power under Article 226 cannot
    regularize an employee - Constitution of India, 1950 - Article
    226.
        Termination - Of respondent-temporary employee -
D Challenge to - Held: On facts, the respondent's service was
  not terminated as a measure of punishment, hence, no
  opportunity of hearing was necessary for terminating her
  service - Direction for her reinstatement cannot be sustained
  as she was only a temporary employee and hence had no
E right to the post - Merely because some others had been
  mgularized did not give any right to the respondent - An
  illegality cannot be perpetuated - Constitution of India, 1950
  - Articles 14 and 16.
       Precedent - Supreme Court dismissing SLP against
F judgment of High Court - Held: The .decision of the Supreme
   Court did not amount to a precedent as it did not contain any
  discussion on the merits of the case.
      The respondent, a BAMS (Bachelor of Ayurvedic
G Medicine and Surgery) degree holder, had been
  a1ppointed under the Anshkalik (temporary) Scheme of
  the State Government and posted at a Government
  Hospital. She was terminated from service.
        The respondent filed writ petition before High Court
H                            1154
        STATE OF U.P. AND ORS. v. REKHA RANI             1155


  claiming entitlement to regularization in service and parity    A
  in wages as regular employees alleging tint the State
  government fiad terminated her service arbitrarily. The
  respondent alleged that Anshkalik doctors had filed a writ
  petition being Civil Writ Petition No. 4886 of 1990 before
  the High Cuurt which allowed the same on 11.2.1992              B
  holding that there was violation of Articles 14 and 16 of
  th" Conl>titution, and directed that the claim of the writ
  petitioners for regularization be considered. The
  respondent alleged that the said High Court judgment
  became final when SLP filed thereagainst was dismissed          c
  by this Court on 19.2.1996 and that she is entitled to
  benefit of the said decision. The writ petition filed by the
  respondent was allowed by the High Court. Hence, the
  present appeal.
       Allowing the appeal, the Con1                              D

         HELD:1. There is no discussion on the merits in the
    order of this Court dated 19.2.1996 passed in the SLP filed
    against the judgment and order of the Higlit Court in writ
    petition No. 4886 of 1990. Thus, the aforesaid decision of    E''
    this Court does not amount to a precedent and the
    respondent can take no benefit from the same. [Para 1O]
· - [1159-B]
      2. A regular appointment can only be made after
  selection by the U.P. Public Service Commission. Also,          F
  admittedly, the respondent was only a temporary
  employee and had not worked after 16.4.1991. 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                 G
  respondent. An illegality cannot be perpetuated; [Paras
  11, 12] [1159-C-E]
       State of Rajasthan vs. Daya Lal 2011 (2) SCC 429 and
  State of Karnataka vs. Umadevi (2006) 4 SCC 1 - relied on.
                                                                  H
         1156    SUPREME COURT REPORTS                   [2011] 3 S.C.R.


    A      3. Also, it is well-settled that a temporary employee
      has no right to the post. 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
    B sustainable as she was only a temporary employee and
      hence had no right to the post. The impugned judgment
      and order of the High Court is set aside and the writ
      petition is dismissed. [Paras 13, 14) [1159-F·H]

    C        State of U.P. vs. Kaushal Kishore Shukla (1991) 1 SCC
         691 - relied on.
                               Case Law Reference:
             2011 (2) sec 429              relied on
                                                                 ..
                                                             • Para 12
    D        (2006) 4 sec 1                relied on            Para 12
             {1991) 1 sec 691               relied on           Para 13
             CIVIL APPELLATE JURISDICTION : Civil Appeal No.
         1017 of 2007.
    E
             From the Judgment and Order dated 28.7.2003 of the High
         Court of Judicature at Allahabad in Civil Misc. Writ Petition No.
         1213 of 1999.

    F        S.R. Singh, Niranjana Singh and Prema Singh, Prema
         Singh for the Appellants.

             Dinesh Kumar Garg for the Respondent.
             The Judgment of the Court was delivered by
    G
             MARKANDEY KATJU, J. 1. This appeal has been filed
         against the judgment and orde_r dated 28.7.2003 in CMWP No.
i
I
         1213 of 1999 of the rtigh Court of Judicature at Allahabad.
I
4
     •       2. Heard learned counsel for the parties and perused the
    ·H   cecord.
        STATE OF U.P. AND ORS. v. REKHA RANI                     1157
               [MARKANDEY KAT JU, J.) .

       3. The respondent has a degree of B.A.M.S.(Bachelor of             A
  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                     B
  Government and was posted at a Government Female Hospital
  in Bulandshahar district.

       4. It 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 Rattan/al and C
   others vs. State of Haryana and others AIR 1987 SC 478 and
   in Rabinarayan Mohapalra 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 D
  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 Court. The appellant
  was appointed from 1.8.1987 to 31. 7 .1988, then from 3.8.1988 E
  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 F
  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 G
  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 H
     1158      SUPREME COURT REPORTS                  [2011] 3 S.C.R.


A 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 petition.

         5. The respondent herein did not work after 16.4.1991 in
.   the State service as her services came to an end on that date.
  8
    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
  C in service and parity in wages as regular employees.

         6. It is alleged that an SLP(C) No. 25503 of 1995 was filed
   before this Court against the Allahabad High Cou11 1udgment
   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
 D allegE~d that after the dismissal of the said SLP the writ
   petitioner(s) should have been regularized in service, but th:-:lt
   was not done.

         7. It is alleged that others similarly situated have been
 E regularized e.g. Dr. Sudha Trivedi in pursuance of th~ 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 against.

 F       8. A 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
 G t;:ould not claim regularization particularly when Chikitsa _
   Adhikari cemes under the purview of U.P. Public Service
   Commission and regular appointment can only be made on the
   recommendation of the said Commission.

            9. Relying on its earl!er decision the High Court allowed
 H
      STATE OF U.P. AND ORS. v. REKHA RANI               1159
             [MARKANDEY KAT JU, J.]

the impugned writ petition No. 4886 bf 1990 on 11.2.1992.         A .
Hence, this appeal.

     10. We 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
                                                                  B
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.

    11. A regular appointment can only be made after              C
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.

     12. It has been held in a recent decision of this Court in 0
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 sec .1 that 'th~ High. Couit .
in exercise of its power und~r Article 226 canfl<>t regufariz.~'an
employee. Merely because some others had been regulaiiZ:ed E
does not give any right to the respondent. An illegality cannot
be perpetuated.

     13. Also, 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 sec 691. The r~spondent's service was not         F
terminated as a measure of punishment. Hence no opportunity
of hearing was necessary for terminating her service. The
direct.ion for her reinstatement is not sustainable as she was
only a temporary empl,oyee and hence had no right to the post.
     .   .                             .                  G-
   . 14. For the reasons aforemeni.0ned, 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.

B.B.B.                                        Appeal allowed.     H