REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1017 OF 2007

State of U.P. and others .. Appellants

-versus-

Rekha Rani .. Respondent  

J U D G M E N T

Markandey Katju, J.

1. This appeal has been filed against the judgment and order dated  

28.7.2003 in CMWP No. 1213 of 1999 of the High Court of Judicature  

at Allahabad.

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2. Heard learned counsel for the parties and perused the record.  

3. The respondent has a degree of B.A.M.S.(Bachelor of 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 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 Rattanlal and others vs. State  

of  Haryana  and  others AIR   1987  SC  478  and  in  Rabinarayan  

Mohapatra 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  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  

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of the aforesaid decisions of this Court.  The appellant was appointed  

from 1.8.1987 to 31.7.1988, then from 3.8.1988 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 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 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  

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.

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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.  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 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 Court judgment 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 alleged that after the dismissal of the  

said SLP the writ petitioner(s) should have been regularized in service,  

but that was not done.   

7. It is alleged that others similarly situated have been regularized  

e.g. Dr. Sudha Trivedi in pursuance of the 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.  

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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  could  not  claim  regularization  

particularly when Chikitsa Adhikari comes 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  earlier  decision  the  High  Court  allowed  the  

impugned writ petition No. 4886 of 1990 on 11.2.1992.  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 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.   

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11. A regular appointment can only be made after 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  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 SCC 1 that  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 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 SCC  

691.   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  

sustainable as she was only a temporary employee and hence had no  

right to the post.  

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14. For  the  reasons  aforementioned,  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.       

……………………………..J. (Markandey Katju)

……………………………..J. (Gyan Sudha Misra)

New Delhi; 30th March, 2011

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