JUDGMENT B.S. Chauhan, J.
1. Both these writ petitions have been filed by Shri Mohan Singh Bais. Writ Petition No. 9798 of 1998 has been filed for quashing the orders dated 03.05.1986 and 12.05.1986, by which the post of Sports Officer had been abolished and the petitioner had been reverted to his original post and Writ Petition No. 15100 of 1999 has been filed for a direction upon the respondents to regularise the services of the petitioner on the post of Sports Officer.
2. The facts and circumstances giving rise to this case are that the petitioner had been appointed as a Routine Grade Clerk-II in 1968 in Nagar Mahapalika, Kanpur. He was asked to look after the sports by the respondent-Nagar Mahapalika. On the recommendation of the Chief Minister of Uttar Pradesh, a post of Sports Officer was sanctioned temporarily for a period of one year and the petitioner was appointed on the said post on ad hoc basis with an understanding that his ad hoc appointment was for a period of one year or till the regular selected candidate was made available for the post, whichever was earlier. The petitioner claims to have been given extension even subsequently, though the tenure of the post was not extended. The last extension was, according to the petitioner, upto 12.30.1987. As the post was not sanctioned rather a specific order was passed by the State authorities abolishing the said post vide order dated 03.05.1986, the petitioner was reverted to his original post vide order dated 12.05.1986. Being aggrieved, petitioner filed Writ Petition No. 9798 of 1986 and this Court, vide order dated 23.06.1986, stayed the operation of both the orders, i.e. 03.05.1986 and 12.05.1986. During the pendency of the said writ petition, the Writ Petition No. 15100 of 1999 was filed seeking the relief of regularisation on the post, as he had been working on the said post since long.
3. Shri Shailesh Verma, learned counsel for the petitioner has submitted that there could be no justification for abolishing the said post and reverting the petitioner, as the post was found to be necessary in the public interest. As the petitioner had been working under the interim order of this Court since long, he is entitled for regularisation on the post of Sports Officer and there can be no justification for reverting him at the verge of his retirement, therefore, both the petitions deserve to be allowed.
4. On the contrary, it has been submitted by the learned Standing Counsel that the post had been sanctioned only for a period of one year. His appointment was maximum for a period one year which came to an end after efflux of tenure of his posting. Therefore, the question of his extension could not arise, as the post was created for a limited period. Even the petitioner was working under interim order of this Court, it will not confer any right to the petitioner. Creation and abolition of the post falls within the exclusive domain of the Executive and the Courts and Tribunals have to keep their hands off in such matters, as it involves the financial burden and being policy matter, such matters are outside the scope of the judicial review by the Courts. Thus, the petitions are liable to be dismissed.
5. We have considered the rival submissions made by learned counsel for the parties and perused the record.
6. It is evident from the record that the petitioner had been appointed as a Routine Grade Clerk-II. He was asked to look after the sports. Subsequently, as the post had been sanctioned temporarily for a period of one year, he was appointed with a clear stipulation that his appointment was for a period of one year or till the regular selected candidate was made available by the State whichever was" earlier. There is nothing on record to show that the tenure of post so created has been extended beyond the period of one year, therefore, in such a fact situation, the question of extension of services of the petitioner could not arise. Even otherwise, the petitioner had been appointed on the said post without advertising the vacancy or calling the names from Employment Exchange. The services of the petitioner were not governed by any Statutory Rules rather he was bound by the terms and conditions incorporated in his appointment letter. Any appointment so made is invalid as it violates the fundamental rights of other eligible candidates who could have applied for the post.
7. It is settled legal proposition that appointment to any public post is to be made by advertising the vacancy and any appointment made without doing so violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered.
8. In Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi and Ors., , the Hon'ble Apex Court held that calling the names from Employment Exchange may curb to certain extent the menace of nepotism and corruption in public employment.
9. In State of Haryana v. Piara Singh, , the Hon'ble Supreme Court held as under:-
"Thirdly, even where an ad hoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly."
10. Any appointment made on temporary or ad hoc basis in violation of the mandate of Articles 14 and 16 of the Constitution of India is not permissible, and thus void as the appointment is to be given after considering the suitability and merit of all the eligible persons who apply in pursuance of the advertisement. In Excise Superintendent Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara Rao and Ors., , the larger Bench of the Hon'ble Supreme Court reconsidered its earlier judgment in Union of India and Ors. v. N. Hargopal and Ors., , wherein it had been held that insistence of requirement through employment exchanges advances rather than restricts the rights guaranteed by Articles 14 and 16 of the Constitution, and held that any appointment even on temporary or ad hoc basis without inviting application is in violation of the provisions of Articles 14 and 16 of the Constitution and even if the names of candidates are requisitioned from Employment Exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from open market as merely calling the names from the Employment Exchange does not meet the requirement of the said Articles of the Constitution. Same view has been reiterated in Arun Tewari and Ors. v. Zila Manaswavi Shikshak Sangh and Ors., AIR 1998 SC 331; Kishore K. Pati v. District Inspector of Schools, Midnapur and Ors., (2000) 9 SCC 405 and Subhas Chand Dhrupta and Anr. v. State of H.P. and Ors., . Therefore, it is settled legal proposition that no person can be appointed even on temporary or ad hoc basis without inviting applications from all eligible candidates and if any such appointment has been made or appointment has been offered merely inviting names from the Employment Exchange that will not meet the requirement of Articles 14 and 16 of the Constitution.
11. In the instant case, there is no pleading to show that at the time of initial appointment of the petitioner on a tenure post, applications had been invited for the post nor the names have been requisitioned from the Employment Exchange. Petitioner had been appointed vide order dated 13.11.1984 on ad hoc basis for a period of one year or till the regular selected candidates were made available by the State Government, whichever was earlier. As the petitioner's service had been under no Statutory Rules, the service conditions of the petitioner were governed by the terms and conditions incorporated in his appointment letter. There were crystal clear stipulations that under no circumstances the petitioner shall be in service after 12.09.1985.
12. There was no occasion for the authority to terminate his services or pass a termination order as his appointment came to an end automatically by efflux of time in view of the terms and conditions incorporated in his appointment letter after one year of his appointment. (Vide State of Punjab and Anr. v. Surinder Kumar and Ors., ; Director, Institution of Management, Development, U.P. v. Smt. Pushpa Srivastava, ; and State of U.P. and Anr. v. Dr. S.K. Sinha and Ors., ).
13. In view of the aforesaid settled legal proposition, the question of continuation of the petitioner in service after 12.09.1985 could not arise as this was the last date on which the petitioner would be deemed to have automatically been removed from service. There could be no occasion to pass an order of extension of his service after 12.09.1985, as the post had been sanctioned only for one year.
14. The post temporarily created for only one year stood abolished. Petitioner filed Writ Petition No. 9798 of 1986 and while entertaining the same this Court vide order dated 23.06.1986 stayed the operation of the orders dated 3.5.1986 and 12.05.1986, by which the post was abolished and petitioner was removed from the said post. In fact, petitioner had no concern, no right and no locus to approach any Court of law for any relief, whatsoever after expiry of the tenure of his posting.
15. It is settled legal proposition that creation and abolition of posts is a policy matter and lies exclusively within the domain of the Executive. The Court has no jurisdiction to interfere in such matters.
16. A Constitution Bench of the Hon'ble Supreme Court in N. Ramanatha Pillai v. State of Kerala and Anr., , has held as under:-
"The discharge of a civil servant on account of abolition of the post held by him is not an action which is proposed to be taken as a personal penalty but it is an action concerning the policy of the State whether a permanent post should continue or not ... the abolition of post may have consequence of the termination of service of a government servant. Such termination is not dismissal or removal within the meaning of Article 311 of the Constitution.... The abolition of post is an executive policy decision. Whether after abolition of the post the government servant who was holding the post would or could be offered any employment under the State, would therefore be a matter of policy decision of the government because the abolition of the post does to confer on the person holding the abolished post any right to hold the post."
(Emphasis added).
17. In K. Rajendran and Ors. v. State of Tamil Nadu and Ors., , the Hon'ble Supreme Court held as under:-
"In modern administration it is necessary to recognise the existence of the powers with the legislature or the executive to create or abolish post in the civil service or State. The volume of administrative work, the measures of economy and the need for stream-line of the administration to make it more efficient may induce the State Government to make alteration in the staffing pattern of the civil services necessitating either the increase or decrease in the number of posts. This power is inherent in the very concept of governmental administration. To deny that power to the government is to strike at the very right of the proper public administration. The power to abolish a post which may result in the holder thereof ceasing to a government servant has got to be recognised".
18. In Union of India and Ors. v. Tejram Parashramji Bombhate and Ors., , the Hon'ble Supreme Court held that "direction to create or abolish a post cannot be issued by the Court being a policy matter involving financial burden. The Courts cannot compel the State to change its policy involving expenditure."
19. Similarly, in Piara Singh (supra), the Supreme Court held as under:-
"Ordinarily speaking, the creation and abolition of a post is the prerogative of the Executive. It is the Executive against that lays down the conditions of service subject, of course, to a law made by the appropriate legislature.... The Court comes into the picture only to ensure observance of fundamental rights, statutory provisions, Rules and other instructions, if any, governing the conditions of service. The main concern of the Court in such matters is to ensure the rules of law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16."
(Emphasis added)
20. In view of the above, as the petitioner had no right to hold the post after 12/9/1985 and to maintain the Writ Petition No. 9798 of 1986, he cannot be granted any relief, whatsoever.
21. The petitioner claims the benefit of regularisation, having worked under the interim order of this Court dated 23.06.1986.
22. No litigant can derive any benefit from mere pendency of case in a Court of Law, as the interim order always merges in the final order to be passed in the case and if the writ petition is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting interim order and thereafter blame the Court. The fact that the writ is found, ultimately, devoid of any merit, shows that a frivolous writ petition had been filed. The maxim "Actus Curiae neminem gravabit", which means that the act of the Court shall prejudice no-one, becomes applicable in such a case. In such a situation the Court is under an obligation to undo the wrong done to a party by the act of the Court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised, as institution of litigation cannot be permitted to confer any advantage on a suitor from delayed action by the act of the Court. (Vide Grindlays Bank Ltd. v. Income Tax Officer, Calcutta and Ors., ; Ram Krishna Verma v. State of Uttar Pradesh and Ors., ; Dr. A.R. Sircar v. State of Uttar Pradesh and Ors., 1993 Suppl. (2) SCC 734; Shiv Shanker and Ors. v. Board of Directors, Uttar Pradesh State Road Transport Corporation and Anr., 1995 Suppl (2) SCC 726; State of Madhya Pradesh v. M.V. Vyavsava & Co., ; The Committee of Management, Arya Inter College v. Sree Kumar Tiwary, ; and GTC Industries Ltd. v. Union of India and Ors., (1998) 3 SCC 376).
23. In Kanoria Chemicals and Industries Ltd. v. U.P. State Electricity Board and Ors., , the Hon'ble Apex Court approved and followed its earlier judgment in Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association, , and observed as under:-
"It is equally well settled that an order of stay granted pending disposal of a writ petition/suit or other proceeding, comes to an end with the dismissal of the substantive proceeding and that it is the duty of the court in such a case to put the parties in the same position they would have been but for the interim orders of the Court."
24. The same view has been taken by the Hon'ble Supreme Court in the case of N. Mohanan v. State of Kerala and Ors., ; and Bileshwar Khan Udyog Khedut Shahakari Mandali Ltd. v. Union of India and Anr., AIR 1999 SC 1198 wherein it has been held that the appointment/continuation in service by interim order, does not create any legal right in favour of the appointee. In State of U.P. and Ors. v. Raj Karan Singh, , the Hon'ble Apex Court has categorically held that interim order cannot disturb the position in law and if a person is in service by virtue of the interim order of the Court, he cannot agitate the issue that his continuation in service in such a condition has improved his claim to regularisation.
25. In South Eastern Coalfields Ltd. v. State of M.P. and Ors., , Hon'ble Apex Court observed as under:-
"...There is nothing wrong in the parties demanding being placed in the same position in which they would have been had the court not intervened by its interim order when at the end of the proceedings the court pronounces its judicial verdict which does not match with and countenance its own interim verdict. Whenever called upon to adjudicate, the court would act in conjunction with what is real and substantial justice. The injury, if any, caused by the act of the court shall be undone and the gain which the party would have earned unless it was interdicted by the order of the court would be restored to or conferred on the party by suitably commanding the party liable to do so. Any opinion to the contrary would lead to unjust if not disastrous consequences. Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the courts, persuading the court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced...".
26. Similar view has been reiterated in Karnataka Rare Earth and Anr. v. Senior Geologist, Department of Mines & Geology and Anr., (2004) 2 SCC 783, in which the Hon'ble Apex Court observed as under:-
"...When on account of an act of the party, persuading the court to pass an order, which at the end is held as not sustainable, has resulted in one party gaining advantage which it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the court and the act of such party, then the successful party finally held entitled to a relief, assessable in terms of money at the end of the litigation, is entitled to be compensated in the same manner in which the parties would have been if the interim order of the court would not have been passed. The successful party can demand: (a) the delivery of benefit earned by the opposite party under the interim order of the court, or (b) to make restitution for what it has lost."
27. Thus, it is evident that a litigant cannot take benefit of his own mistake of getting the interim order in a case having no merit.
28. In view of the above, we are of the considered opinion that as the petitioner had been working under the interim order of the Court and the writ petition in which he got the interim order is devoid of any merit as the creation and abolition of the post is within the exclusive domain of the Executive and the Courts cannot interfere in such matters, the petitioner cannot take the benefit of working under the interim order of the Court.
29. Both the petitions are devoid of any merit and are accordingly dismissed.