- (1.) M. Katju, J. This writ petition has been filed for a mandamus directing the respondent No. 3, the District Magistrate, Shahjahanpur to permit the petitioner to work on the post of Assistant Wasil Baki Navis in Tahsil Sadar district Shahjahanpur.
(2.) I have heard learned counsel for petitioner and learned standing counsel. It appears from Annexure 1 to the writ petition that the petitioner was ap pointed in a purely temporary capacity for three months as seasonal Assistant Wasil Baki Navis. The said appointment order dated 8-1-97 specifically stated that if during this period of three months the service of the petitioner is not terminated it will auto matically come to an end on the expiry of three months. It is settled law that a tem porary employee has no right to the post vide State of U. P. v. Kaushal Kishore, 1991 (1) JT 108; Thveni Shanker Saxena v. State of U. P. , AIR 1992 -SC 496; Commissioner of Food and Civil Supply v. P. C. Saxena, (1994) 5 SCC 177; R. C. Tripathi v. U. P Public Ser vice Tribunal, 1994 (2) JT 84; M. P. Hast Shilpa Vikas Nigam v. D. K. Jain, 1995 (1) SCC 638; Shree Pal Singh v. DM, 1996 (2) UPLBEC 1339; etc. Moreover the appoint ment letter itself states that if the service is not terminated before three months it will automatically come to an end on the expiry of three months. Learned counsel for the petitioner has invited my attention to Annexures 5 and 6 to the petition which are copies of the interim orders passed by a learned Single Judge of the Lucknow Bench of this Court in which in similar circumstance the follow ing order was passed in writ petition No. 6917 (SS) of 1996,- Vishnu Dev v. State of U. P and others; "stay Application Lucknow: Dated 7-11-96hon'blej. Bhalla. J. Six weeks time allowed for filing counter affidavit. In the meantime, if the work and post is available and the conduct of the petitioner is satis factory then the petitioner be given work. (Sd.)J. Bhalla 7-11-96. " Another order was passed in another similar petition being Writ Petition No. 16 of 1997, is as follows: Hon'blej. Bhalla,j. List alongwith writ petition No. 6917 of 1996. Six weeks time allowed to the counsel for respondents to file counter affidavit. In the mean time if work and post is available and conduct of the petitioner is satisfactory then petitioner will be given work. (Sd.)J. Bhalla 3-1-1997"
(3.) WITH profound respect to my learned brother of the Lucknow Bench I cannot at all agree with such kind of interim orders. It is settled law in service jurisprudence that a temporary employee has no right to the post (as held in the above decision) and hence even if the post is still existing this does not mean that a temporary employee has a right to continue on the post merely because the post is continuing to exist. In my humble opinion, the orders of the Lucknow Bench in teeth of the above decision of the Supreme Court and in viola tion of Article 16 of the Constitution which states that there has to be equality of oppor tunity for all citizens in matters relating to employment and appointment to any office under the State. Article 16, therefore, im plies that a post under the State has normal ly to be advertised or otherwise widely publicised so that all eligible persons can apply for the same. The above quoted inter im orders of the Lucknow Bench seem to imply that a person can get a back door appointment for a short period on ad hoc or temporary basis without any advertisement or selection and then by a court order he can continue. This is clearly against Article 16. 1 reiterate that merely because the post is still existing it does not mean that a purely tem porary employee has a right to continue on the post, rather the legal position is just the reverse, namely that a temporary employee has no right to the post. In Arvind Mishra v. Zila Nibandhak, 1995 (1) UPLBEC 404], the facts were that the petitioner was given an appointment for 90 days, but his service was terminated before the expiry of that period. He filed a writ petition in which a learned Single Judge passed an interim order restraining the respondents from interfering with his work ing and directing that he paid salary. By virtue of that interim order the petitioner continued in service for over three and a half years. Against that interim order a special appeal was filled and the Division Bench observed:- "a classic instance of an interim order passed by this Court being a windfall is provided here. . . . . It is indeed extraordinary that where the claim was only to the extent that he be permitted to continue in service for 90 days the petitioner has been directed to be kept in service for such a long period of time. In other words, he has obtained a relief which he was clearly not entitled to. " The petition was dismissed with cost of Rs. 10,000/ -.;