1. The petitioners are seeking a mandamus commanding the respondents to allow them to continue in service and regularise them.
2. Learned counsel for the petitioners contended that though they have continued pursuant to interim order dated 28.06.1993 passed by this Court yet since subsequently Regularisation Rules have been framed and they are entitled to be considered for regularisation thereunder hence their continuous service till date is liable to be taken into consideration to consider whether they have a right for regularisation or not.
3. The submission is thoroughly misconceived. Admittedly, the petitioners were disengaged from their daily wage muster role employment by means of the impugned order. Counsel for the petitioners could not make any submission to assail the said order of termination. The order of termination was made ineffective by means of the interim order passed by this Court. Meaning thereby continuance of petitioners in service is not based on their own rights but pursuant to this Court's order. The law is well settled in this regard that act of Court shall prejudice none and anything which has been done pursuant to interim order shall depend on the final result of the writ petition. In case the writ petition fails it will result as if no interim order was ever passed. This issue has been considered by a Division Bench of this Court (in which I was also a member) in Smt. Vijay Rani Vs. Regional Inspectress of Girls Schools, Region-1, Meerut and others, 2007(2) ESC 987 and the Court held as under:
"An interim order passed by the Court merges with the final order and, therefore, the result brought by dismissal of the writ petition is that the interim order becomes non est. A Division Bench of this court in Shyam Lal Vs. State of U.P. AIR 1968 Allahabad 139, while considering the effect of dismissal of writ petition on interim order passed by the court has laid down as under:
"It is well settled that an interim order merges in the final order and does not exist by itself. So the result brought about by an interim order would be non est in the eye of law if the final order grants no relief. The grant of interim relief when the petition was ultimately dismissed could not have the effect to postponing implementation of the order of compulsory retirement. It must in the circumstances take effect as if there was no interim order."
The same principal has been reiterated in the following cases:
(A)AIR 1975 Allahabad 280 Sri Ram Charan Das V. Pyare Lal.
"In Shyam Lal Vs. State of U.P., AIR 1968 All 139 a Bench of this Court has held that orders of stay of injunction are interim orders that merge in final orders passed in the proceedings. The result brought about by the interim order becomes non est in the eye of law in final order grants no relief. In this view of the matter it seems to us that the interim stay became non est and lost all the efficacy, the commissioner having upheld the permission which became effective from the date it was passed."
(B)1986 (4) LCD 196 Shyam Manohar Shukla V. State of U.P.
"It is settled law that an interim order passed in a case which is ultimately dismissed is to be treated as not having been passed at all (see Shyam Lal V. State of Uttar Pradesh) Lucknow, AIR 1968 Allahabad 139 and Sri Ram Charan Das v. Pyare Lal, AIR 1975 Allahabad 280 (DB)."
(C) AIR 1994 Allahabad 273 Kanoria Chemicals & Industries Ltd. v. U.P. State Electricity Board.
"After the dismissal of the writ petitions wherein notification dated 21.4.1990 was stayed, the result brought about by the interim orders staying the notification, became non est in the eye of law and lost all its efficacy and the notification became effective from the beginning."
4. Recently also in Raghvendra Rao etc. Vs. State of Karnataka and others, JT 2009 (2) SC 520 the Apex Court has observed:
"It is now a well-settled principle of law that merely because an employee had continued under cover of an order of Court, he would not be entitled to any right to be absorbed or made permanent in the service. ............."
5. Admittedly the petitioners are daily wage employees and have no right to hold the post or continue in service. On the date when impugned order was passed disengaging the petitioners, there was no provision under which petitioners could have claimed regularisation and none has been shown before this Court.
6. Learned counsel for the petitioners however submitted that disengagement amounts to retrenchment and as such has violated the procedure prescribed in U.P. Industrial Disputes Act, 1947, hence the termination is illegal.
7. The question whether termination amounts to retrenchment or not requires investigation into several questions of fact and it is now well settled that if some right is claimed under labour legislation and if the legislation also contain adjudicatory forum, the remedy lie there and not by filing writ petition. In the case of contractual appointment, the remedy lies elsewhere, but no relief of reinstatement can be granted in view of the provisions of Specific Relief Act as also this Court's judgement in Special Appeal No. 1906 of 2008 (Brij Bhushan Singh and another Vs. State of U.P. and others) decided on 19.12.2008.
8. In view thereof I find no merit in the writ petition. Dismissed. Interim order, if any, stands vacated.
Order Date :- 22.2.2011 AK