Dr. CHAUHAN, J. - (1.) THE instant writ petition has been filed for quashing the impugned order dated 25. 4. 1992, by which the services of the petitioner stood terminated because of abolition of the post.
(2.) THE facts and circumstances giving rise to this case are that petitioner was appointed temporarily only for a period of three months against a substantive post of Washerman in the hospital vide order dated 28. 1. 92 (Annx. 1) and his services have been terminated, vide order dated 25. 4. 92, for the reason that the post, on which he was appointed temporarily, stood abolished. Respondents have filed reply more than six years ago stating that the post, on which petitioner was appointed, stood abolished, therefore, he had no right to continue on that post and the respondents had no option but to terminate his services. It has further been stated in the reply that no person junior to petitioner has been retained on the post nor there was any post of Washerman lying vacant. Petitioner has not rebutted the aforesaid position by filing rejoinder affidavit. A Constitution Bench of the Hon'ble Supreme Court in N. Ramanatha Pillai vs. State of Kerala & Anr. (1), 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 not confer on the person holding the abolished post any right to hold the post. The High Court was correct in holding that no estoppel could arise against the State in regard to abolition of the post. . . . The High Court rightly held that the Courts exclude the operation of doctrine of estoppel, when it is found that the Authority against whom estoppel is pleaded, as owed a duty to public against whom the estoppel cannot fairly operate. . . . . The right to hold a post comes to an end on the abolition of the post which a government servant holds. Therefore, a government servant cannot complain of a violation of Article 19 (1) (f) and Article 31 of the Constitution when the post is abolished. " In K. Rajendran & Ors. vs. State of Tamil Nadu & Ors. (2), 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 of 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 necessiating 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. " In Union of India & Ors. vs. Tejram Parashramji Bombhate & Ors. (3), 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. " Similarly, in State of Haryana vs. Piara Singh (4), 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. "
(3.) IN the instant case, there is no allegation of malafides against the respondents nor the order of abolishing the post has been challenged. IN view of the above referred to settled legal proposition, petitioner does not have any right to hold the post and petition is devoid of any merit whatsoever. Mr. Drauna Kaushik has further submitted that the petitioner is working under the interim order of the Court for fairly a long time. It is settled legal proposition that a party does not get any legal right by interim order. The Court has stayed the operation of the impugned order which was not maintainable and the petitioner cannot take benefit out of his own mistake by filing such a frivolous and meaningless petition as has been held by the Hon'ble Apex Court in G. S. Lamba & Ors. vs. Union of India & Ors. (5), and T. Srinivasan vs. T. Veeralaxmi Further, it is settled law that 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 benefit of his own wrongs by getting interim order and thereafter blaming 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 Curie neminem gravabit is applicable in such a case, which means that the act of the Court shall prejudice no one. 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 Grindleys Bank Ltd. vs. Income Tax Commissioner (7), Ram Kishan Verma vs. State of U. P. (8), Dr. A. K. Sircar vs. State of U. P. & ors. (9), Shiv Shanker & ors. vs. Board of Directors, U. P. State Road Transport Corporation & Anr. (10), M/s Kannoriya Chemicals & Industries Ltd. vs. U. P. State Electricity Board (11), Ugam Singh vs. State of Rajasthan & ors. (12), the Committee of Management, Arya Inter College vs. Shree Kumar Tiwari (13), G. T. C. Industries Ltd. vs. Union of India & Ors. Similar view has been reiterated by the Hon'ble Supreme Court in State of Madhya Pradesh vs. M. V. Vaishvaraiya (15), and Style (Dressland vs. Union Territory of Chandigarh & Anr. ;