JUDGMENT D.K. Seth, J.
1. The petitioner was appointed by virtue of resolution dated 12.1.1997 for a period of 89 days purely on ad hoc basis or till the regularly selected candidate joins whichever is earlier. There was another resolution dated 15.3.1997 whereby the petitioner's service was extended after 1989 till regularization. On the basis of this resolution, the petitioner alleges to be continuing in service. The petitioner further contends that by an order dated 26.4.1997 the petitioner's tenure was extended till regularization. Subsequently the petitioner was transferred from one place to another by an order dated 6.6.1997 which was also amended subsequently by an order dated 17.6.1997. He further contends after his transfer, his salary having been stopped, the petitioner has made a representation which is Annexure-9 to the writ petition. On the basis of such representation, as contended in para 34 of the writ petition, the respondent No. 2 had granted sanction by his letter No. 273, dated 12.2.1999 which has since been denied by respondent No. 3, in these circumstances, the petitioner had prayed mandamus directing the respondents to pay the petitioner's arrear from March, 1998 till March, 1999, as well as mandamus directing the respondents not to interfere with the petitioner's functioning and for regularization.
2. Sri B. D. Mandhyan, learned counsel for the respondents, on the other hand, contends that the petitioner was never appointed as against any post, therefore, he cannot claim any legal right to establish his right through the writ jurisdiction. He further contends that since the petitioner's appointment was for a limited period, by virtue whereof, he cannot be said to have secured any legal right on the post as has been held in the several decisions of the Apex Court. He further contends that the subsequent extensions were all de hors the rule and the petitioner having been engaged de hors the rule he cannot establish his right through writ Jurisdiction. He further contends that there were several appointments made de hors the rule for which the respondents had taken a decision to dispense with all such irregular and illegal appointments which are innumerable, therefore, appropriate and adequate decision had been taken. He further contends that there was no sanction for payment of salary after March. 1998, therefore, the petitioner cannot claim any salary and right to continue after March. 1998, when there having been no sanction for payment of salary after March. 1998. On these grounds, relying on various decisions on Identical issue to which reference would be made hereinafter. Mr. Mandhyan contends that the instant writ petition should also be dismissed.
3. Shrl Pradeep Chandra, learned counsel for the petitioner, however, contends that the petitioners services have not been terminated either by oral order or by written order, therefore, all these grounds made by Shrl Mandhyan, cannot be sustained.
4. I have heard learned counsel for the petitioner Shri Pradeep Chandra and learned counsel for respondents Shri B. D. Mandhyan at length.
5. Admittedly. Shri Mandhyan has not come out with a specific case that the services of the petitioner have been dispensed with either by oral order or by written order, though he contends that by virtue of decision taken in general, the petitioner cannot continue. On the other hand, he tries to impress upon that there having been no sanction after March. 1998, which Itself is a sufficient indication that the petitioner's services have been dispensed with since March, 1998. But that contention could be said to contain sufficient force if the letter No. 273 dated 12.2.1999 as mentioned in para 34 of the writ petition was not issued. However, the said letter dated 12.2.1999 has not been annexed in the writ petition, whereas Mr. Mandhyan contends that no sanction was given, in case sanction has been accorded by the said letter, in that event, the contention of Mr. Mandhyan cannot be substantiated. At the same time, in the absence of letter dated 12.2.1999, it is not possible to decipher as to what is the contents of the said letter simply on the basis of statement made in paragraph 34 of the writ petition. Since no counter affidavit has been filed except a short counter-affidavit, it cannot be said that said paragraph No. 34 has not been denied, in view of exigency, Shri Mandhyan has filed a short counter-affidavit, it cannot be treated to be a counter-affidavit since he was not given such opportunity.
6. At the same time. Shri Pradeep Chandra, learned counsel for the petitioner has not been able to show as to against which post the petitioner was appointed nor it appears from record that the petitioner was regularly appointed. From the initial appointment of the petitioner, it is apparent that he was appointed for a period of 89 days or till the regular selection is made whichever is earlier. Therefore, it was not a regular appointment, it was an ad hoc appointment till regular appointment is made. Thus, the appointment of the petitioner is de hors the recruitment rule. Subsequent resolutions which had sought to extend such limited period of appointment with the added appendage i.e., till regularization does not confer any right to continue on the post which could be enforced through legal process.
7. In respect of several other cases. Identical question was posed to this Court which were decided on divisive dates, in the decision in writ petition No. 35830 of 1997, Employee's Union of Mandi Assistants v. Director, U. P. Krishi Utpadan Mandi Parishad and others, decided on 20.11.1997, in similar circumstances.
It was held that the petitioners therein do not have any right to the post by virtue of their employments which were all time bound, in Special Appeal No. 3 of 1998 the order passed in Writ Petition No. 35830 of 1997 dated 20.11.1997 has since been confirmed by the appellate court. Yet in another decision in Writ Petition No. 2879 of 1998, decided on 29.1.98, Raghuvendra, Nath Misra v. Krishi Utpadan Mandi Parishad and others, the same view was taken by another learned single Judge. Identical view was taken by another learned single Judge in his order dated 6.8.1998 passed in Writ Petition No., 25272 of 1998 between Mohan Pandey v. Director/Additional Director of Rajya Krishi Utpadan Mandi Parishad and others, in the Writ Petition Wo. 7612 of ! 998. Harendra Kumar v. Secretary Rajya Krishi Utpadan Samili and others, decided on 6.3.1998. I had taken a view that unless a person claims a right to the post he cannot claim any legal right to establish through writ jurisdiction and that the recruitment de hors the rule does not confer any right to continue, in the decision dated 18.3.1999 passed in Writ Petition No. 10204 of 1999. Awadh Naratn and another v. State of U. P, and others. I had held that in order to invoke writ jurisdiction, one must establish that he has legal right which he could enforce through writ jurisdiction. Right to work is a right to livelihood but that does not mean that in every case the said principle would apply even when appointment is made orally on daily wage basis to serve a temporary need through stop gap arrangement. One has to show that he has acquired a right to the post in order to claim a right to livelihood. Unless right to post is established, one cannot claim infringement of the right to livelihood. One cannot expect such right to be established de hors the rule. Such decision was arrived at relying on the decision in the case of Himanshu Kumar Vidyarthi v. State of Bihar 1997 (76) FLR 237, of the Apex Court and some other decisions mentioned in the said judgment.
8. in that view of the matter, it will be open to the respondents to take proper step, if it is so advised in accordance with law but after taking into account the contents of letter No. 273 dated 12.2.1999 referred to in para 34 of the writ petition, provided by the said letter the salary of the petitioner is so sanctioned for a particular period, provided further that the petitioner had actually worked and having regard to the attendance register annexed as Annexure-RA-1 to the rejoinder-affidavit if admissible. Such consideration shall be made by the respondent as early as possible preferably within a period of one month from the date of production of certified copy of this order before the concerned respondent.
9. With the aforesaid observation/direction this writ petition is disposed of.
However, there will be no order as to cost.