STATE OF UTTAR PRADESH AND ORS.versusEX. PILOT OFFICER ARUN GOVIL

            STATE OF· U1TAR PRADESH AND ORS.
                            v.                                                 A
              EX. PILOT OFFICER ARUN GOVIL

                         NOVEMBER 21, 1989

       [E.S. VENKATARAMIAH, C.J., K.N. SINGH AND                               B
                   N.M. KASLIWAL, JJ.]

      Service Law-Appointment in the nature of contract and f<Ir 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.
                                                                               c
     Constitution of India, 1950: Article 226--Wril petition-Interim
order by High Court-Effect of-Whether controls jNrisdiction of-the
High Court to dispose the writ petition on merits.
       Pursuant to a scheme enacted for the benefit of ex-military
officials the appellant-State appointed the respondent on 20.8.1979 as         D
Sttretary Zila Sainii< Board on contract basis for a specif"led 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 chal-
lenging the termination order. By an order dated 24.3.1988 tlie High           E
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 ""fore (he 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      F
though there was no order of extension of service. By an •order dated
26. 7 .19A8, the High Court allowed the Review Petitio~ dirttting the
appellant State to reinstate the respondent in service. Heiice this appeal
by the State.
      Allowing. the appeal and setting aside the order passed on Review,       G
this Court,
      HELD: 1. Io the instant case, the appointment of the respondent
was indisputably in the nature of contract and under the order of
appointment be 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
                                                                               H
further extension. Since no order of extension had been sanctioned by
                                    239
    240         SUPREME COURT REPORTS                 [1989] Supp. 2 S.C.R.

    the Governor beyond 30th Au_gust, 1985 the respondent was entitled to
A
    the salary and allowances due to him till 30th of August, 1985 if tne order
    of termination of service was found to he an invalid one. [242B; 244C I
          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
B   it was not right in making an order on Review on 26.7.1988 rely-
    ing upon the interim order dated 10.7.1986 which in the circums-
    tances could not have the effect of controlling the jurisdiction of the
    High Courl to dispose of the Writ Pettion on merits as it did on
    24.3.1988. 1245A-B]
           2. The interim order passed by the High Court did not and could
c   not amount to a direction that the respondent was entitled to be rein-
    stated 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.
D
         .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 Ap~llants.

         Yogeshwar Prasad, Vijay Hansaria, Sunil K. Jain, S.K. Jain for
E   the Respondents.
          The Judgment of the Court was delivered by

          VENKATARAMIAH, CJ. The Respondent, Arnn Govil had
    been granted a permanent commission in the Indian Air Force and was
F   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
G   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 Auguat, 1979. Paragraph 2 of the said order of appointment
    issued on 20th August, 1979 reads thus:

H                "The appointment shall be on contract for a period of one
       STATE OF U.P. v. ARUN GOVIL (VENKATARAMIAH, CJ.]            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          A
           Governor or on paying one month's salary in lieu thereof or
           by giving one month's n~tice by the Officer."

      The respondent was required to furnish his acceptance of the
terms and conditions contained in the said order including the above      B
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 Ist         c
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,                                                          D

                 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 men-
           tioned in para-4 (has expired). The Governor is therefore      E
           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 com-
           pletion of 58 years of age in case the same is completing
           earlier during the extended period.
                                                                          F
           SL No. Name and         Date of Date of       Recomnien-
                  place of         appoint- expiry       dation
                  appoint-         ment     of con-      extend
                  ment                      tract        the contract
                                                                          G
           1 to 12
           13   Ex-Pilot           21.8.79    31.3.83    1.4.83
                Arnn Govil,                              30.8.85
                Unnao
           14to21-
                                                                          H



                                                                              '.
    242        SUPREME COURT REPORTS                [1989] Supp. 2 S.C.R.

                     2. During the extended period of the contract condi-
A              tions of service of officers shall remain same as are
               mentioried 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."
B
          It is thus seen that the appointment of the respondent was indis-
    putably in the nature of contract and under the last order of appoint-
    ment referred 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.

c        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.
D
        The respondent aggrieved by the said order of termination filed a
  Writ Petition on the file of the High Court of Allahabad in Writ Peti-
  tion No. 3164 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
E 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 termina-
  tion 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
F 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.
H
        STATE OF U.P. v. ARUN GOVIL [VENKATARAMIAH, CJ.I              243

        The respondent who was not satisfied by the order allowing the
  Writ Petition as stated above preferred a Review Petition before the       A
  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          B
  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 forth-
             with to the petitioner by way of an appointment."               c
         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              D
 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       E
            writ petition was decided, our attention was not drawn
            towards the interim order dated 10. 7.1986 passed by learned
            single Jiidge in which it was provided that one post will be
            kept vacant and in ~ase the petitioner succeeds in his peti-
            tion it would be made available forthwith to the petitioner
            by way of his appointment. The petitioner has pointed out        F
            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 continua-
            tion in service or of fresh appointment and no observations
            in this regard are being made by this 'Court." "
                                                                             G
       Aggrieved by the above order made on review which directed the
 State of Uttar Pradesh, the appellant herein, to reinstate the respon-
 dent in service, the State Government has filed this apeal by special
 leave.

      It is not disputed that the scheme under which the respondent          H
    244         SUPREME COURT REPORTS               [ 1989] Supp. 2 S.C.R.

   h.ad been appointed provided for an appointment by contract for a
A  specified term which could be extended from time to time and that the
   term of the respondent had been extended on differnt 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 respon-
B dent 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 t0 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
c employed only under a contract which specified the term of his ap-
   pointment which extended only upto 30th of August, 1985. Since it is
   admitted that no order of'extension )lad been sanctioned by the Gover-
   nor beyond 30th August, 1985, the respondent was entitled to the
   salary and allowances due to him till 30th of August, 1985 if the order
D 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 con-
E tinuation 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 extend-
   ing his period of appointment till 30th of August, 1985 were liable to
p be ignored and that he should be treated as a person regularly
   appointed in Government service entitled to continue till he comp-
   leted 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
0  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
Ji his service had not been extended by the Governor of Uttar Pradesh.
       STATE OF U.P. v. ARUN GOVIL [VENKATARAMIAH, CJ.]                245

      In the circumstances, we feel that while the High Court was right       A
in disposing of the Writ Petition on 24.3.1988 declaring that the respon-
dent 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 10.7.1986which
in the circumstances could not have the effect of cotrolling the jurisdic-
                                                                              B
tion 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.                    c
      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 penulti-
mate paragraph of the Judgment dated 24.3.1988 which reads thus:
                                                                              D
            "It is open for the opposite parties to consider the claim of
            the petitioner for continuation in service or the fresh ap-
            pointment and no observations in this regard are being
            made by this Court."

      The appeal is accordingly allowed. No costs.
                                                                              E
T.N.A.                                                    Appeal allowed.