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Siya Ram v. State - WRIT - A No. 34983 of 1991 [2004] RD-AH 708 (1 September 2004)


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Court No.6

Civil Misc.Writ Petition No.34983 of 1991

Siya Ram                             vs                               State of U.P.and others.

Hon'ble R.B.Misra,J.

Heard Sri Abhishek Tripathi, holding brief of Sri K.K.Arora, learned counsel for the petitioner and Sri S.P.Singh, along with Sri S.B.Singh, learned counsel for the respondents-State.

(1). In this petition prayer has been made to quash the order dated 6.10.1990 passed by prescribed authority Sub Divisional Magistrate, Pilibhit whereby the petitioner being treated as a temporary employee was terminated by an order simplicitor in view of the provisions of U.P.Temporary Government Servant ( Termination of Service ) Rules 1975     ( in short called '' Rules 1975').  

(2).  According to the petitioner, petitioner was appointed as Collection Amin by an order dated26.4.1990 in clear vacant post after the termination of one Sri Mahendra Nath Misra on the ground of corruption and irregularities.   The petitioner rendered satisfactory service, however, petitioner was surprised to receive the termination order dated 6.10.1990 which has been passed without notice or show cause or without affording opportunity of hearing and ignoring the continuous service of the petitioner rendered for five years and instead of regularizing his service petitioner was illegally terminated contrary to the provisions of Article 14 of the Constitution.  

(3). Against the above order dated 6.10.1990 an appeal before the Commissioner was filed that too was dismissed by order dated 21.10.1991.      (4).   Being aggrieved against both the order dated 6.10.1990 and 21.10.1991 the petitioner has filed the present writ petition.

(5). According to the respondent, petitioner being a temporary employee has been terminated by a order of simplicitor in view of '' Rule 1975 ' where no notice, or show cause or opportunity of hearing was necessary to be given to the petitioner in view of decision of Supreme Court ( 1991 ) 1 SCC-691     ( State of U.P. and another v. Kaushal Kishore Shukla ).

(6). In 2004 (2) UPLBEC 2070 (Ram Asray Vs.District Judge, Bijnor) it was held that temporary employee has no right to hold the post and his service is liable to be terminated without assigning any reason either under the terms of the contract providing for such termination or under the relevant statutory rules regulating the terms and conditions of temporary servants.

(7). The issue involved herein is no more res-integra. In State of U.P. & ors. Vs. Kaushal Kishore Shukla, 1991(1) SCC 691, the Supreme Court has categorically held as under:-

"Under the service jurisprudence a   temporary employee has no right to  hold   the post and his services are liable to be terminated in accordance with the relevant service rules and the terms of contract of  service."

(8). In the instant case the Court  has  to be satisfied as what is the legally justiciable   right of  the petitioner which has been  infringed  and for which  the  petitioner can resort  to  the  discretionary  relief  under  Article 226 of  the Constitution  of  India. The Supreme  Court  in  Purshotam Lal Dingra Vs. Union of India, AIR 1958  SC 36, has  held  that " A person can be  said  to  acquire a  lien  on a post only when he has  been  confirmed  and made permanent on that post and not  earlier"  and  further  held that                       " a  Government  servant holding  a post temporarily does not  have  any right  to  hold the said post."    In R.K  Mishra  Vs.  U.P.  State Handloom Corporation, AIR 1987 SC  2408, the Supreme  Court has also taken the same view.  

(9). A temporary employee has no right to hold the post and his service   is liable to be terminated without assigning any reason either under the terms of the contract providing for such termination or under the relevant statutory rules regulating the terms and conditions of temporary servants.   Similarly, in Triveni Shanker  Saxena Vs.  State of U.P.  & ors., AIR  1992  SC  496; Commissioner  of  Food  and  Supply  Vs.   Prakash Chandra Saxena, 1994(5) SCC 177; Ram Chandra Tripathi  Vs.   U.P.  Public Service Tribunal and others, 1994(2) JT 84;  Madhya Pradesh Hasth Shilp  Vikas Nigam Ltd.  Vs.  Devendra Kumar Jain & anr., 1995(1) SCC  638;   and   Kaushal  Kishore  Shukla (supra),  the  Supreme Court has  categorically  held that incumbent  to  a  post  who  has  been  given appointment on temporary basis, terminable without  notice, has  no  right to hold the post and he  is  not entitled for any opportunity of hearing before his service is dispensed with as his termination does not amount to forfeiture of any legal right.

(10). In Ravi S.  Naik Vs.  Union of India, AIR  1994 SC 1558,  the  Supreme Court has  placed  reliance  on the observations made in Malloch  Vs.  Aberdden  Corporation,  1971 (2) All  E.R.   1278,  wherein it was observed as under:-  

"A  breach of procedure, whether called  a  failure of natural justice or an essential administrative  fault  cannot give  him  a  remedy  in  the courts, unless  behind  it there  is something of substance which has  been  lost by the failure.  The Court does not act in vain."  

(11). In Life Insurance Corporation of India Vs. Raguuvendra Sheshgiri Rao Kulkarni, (1997) 8  SCC 460, the  Supreme Court has elaborated the difference of a permanent  employee  and an employee  holding  the post on probation  and held that the service of a  probationer  cannot  be  equated with  that  of  a  permanent  employee who, on account of his status,  is entitled  to  be  retained in service  and  his service cannot be terminated abruptly without any notice or  plausible cause.  " This is based on the  principle  that  a  substantive appointment  to  a  permanent   post  in  a  public  service   confers   substantive  right  to  the post  and  the  person appointed  on that post becomes entitled to hold a lien on that post. "    However, interpreting/  enforcing the terms of appointment, which provided  for discharge of the said probationer from service at any time  during  the  period of  probation  or extended  period of probation, without any  notice or without  assigning  any cause, the  Court has  held that as his termination was in consonance with the terms and conditions of his appointment letter, he cannot be heard to  raise the grievances.

(12). In State of Punjab & ors.  Vs.   Surindra  Kumar & ors., AIR  1992 SC 1593, the Supreme  Court has held that the court must seek the adherence to the terms  and  conditions of the appointment  and there is  no  reason why terms and  conditions  of appointments  cannot be enforced in a contract  of service.

(13). In Hindustan Education Society & anr.  Vs.  K.P.  Kalim  S.K.   Gulam Nabi, 1997 (5) SCC  152, the Supreme  Court  has  held that  where  the  rules specifically  provide for permanent appointment on probation for a specific period and an employee is appointed without stipulating any condition regarding  probation, the inference is to be drawn that he was not appointed in substantive capacity. In Avinash  Nagra Vs.  Sarvodaya Vidhyalaya Samiti & ors., 1997  (2) SCC 534, the Supreme Court has held that a society can terminate the service not only of a temporary  employee  but also of a  permanent employee by giving him one month's notice or three months' pay  and allowances in lieu thereof if the  terms of appointment and rules so permit and such termination  may be valid in a given cases even if the principles  of  natural justice have not  been  complied with.

(14). In Union of India Vs. Bihari Lal Sidhana, AIR 1997 SC 3659, the termination of the services of the temporary employee as provided under the Rules was upheld by Supreme Court in spite of the fact that he had been put under suspension for a mis-conduct and this factum had also been mentioned in termination order.

(15). In Chandradeo Gautam Vs.  State of U.P. & ors., JT 2000  (10) SC 199, the  Supreme Court has held that the termination of  service of temporary employee does not require interference on being removed  on  any ground as it does not  cast  any stigma  or aspersion on him.  In Nazira  Begum Laskar &  ors.   Vs.  State of Assam, AIR 2001  SC 102, the  Supreme  Court held that where  appointment neither confers any right nor any equity in favour of the employee, as the appointment was purely temporary  and could be terminated without notice, no grievance  can be entertained by such employee.    More so, cannot claim any equitable relief from any Court.

(16). In Dhananjay Vs. Chief Executive Officer, Zila Parishad, Jalana, 2003 AIR SCW 739, the  Supreme Court upheld the termination order passed under Central Civil Service (Temporary Service) Rules, 1965 in spite of the fact that the employee had been prosecuted in the criminal case and acquitted however the inquiry into the allegations was also directed but not held observing that order was not stigmatic and termination was within the ambit of the statutory rule.

(17). I have heard learned counsel for the parties, I find that the petitioner being a temporary government employee could be terminated in view of the above '' Rules 75 ' by order simplicitor and the contentions of the respondent have force that the temporary employee while being terminated by order simplicitor is not required to be given any notice or opportunity of hearing.

In view of the above observation, the writ petition is dismissed.

Dated 1.9.2004



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