Ajay Kumar Srivastava vs Commissioner Consolidation, U.P., Lucknow and others

R.B. Misra, J.

Heard Sri R.B. Pradhan, learned Counsel for the petitioner and learned Standing Counsel for the respondents. The case was listed on twelve occasions and on 16th January, 2001 six weeks'' time was allowed with a stop order that no more time shall be allowed to file counter affidavit. On 31st December, 2001 also on humble request on behalf of the learned Standing Counsel six weeks'' time was allowed with another stop order that no more time would be allowed to file counter affidavit. At this stage also there is no instructions on behalf of learned Counsel for the respondents to enable him to file the counter affidavit. Therefore, this petition is disposed of on the material available on records. Though the counter and rejoinder affidavits have not been exchanged, however, now with the consent of the learned Counsel for the parties this writ petition is being disposed of finally at this stage on the basis of material available on records and proceedings of the petition in reference to second proviso of Rule 2 of Chapter XXII of the High Court Rules, 1952.

By this writ petition the termination order dated 24th November, 1983 passed under U.P. Temporary Government Servant (Termination of Service) Rules, 1975 (in short called ''Rule 1974'' hereinafter), has been challenged.

The facts for adjudication of the writ petition are that the father of the petitioner died on 2nd May, 1986 during the service while serving in the consolidation office of State of U.P. On the representation the Commissioner Consolidation has sanctioned the appointment on 25th June, 1987 under U.P. Recruitment of Dependent of Government Servant DyinginHarness Rules, 1974 (in short called Rules, 1974). In view of the above order the Settlement Officer, Consolidation, Varanasi has issued appointment order dated 4th July, 1987 appointing the petitioner as Class IV employee in the department on temporary basis (Annexure2) to the writ petition. The petitioner fell ill on 4th October, 1988 and could not attend the office, therefore, he send an application for medical leave to the respondent No. 3/Settlement Officer. It appears that the same did not reach the respondent, therefore, the petitioner received a notice dated 4th November, 1988 (Annexure4) to the writ petition by which the petitioner was asked to submit his explanation within 5 days. The above notice dated 4th November, 1988 was received by the petitioner on 15th November, 1988, and as such the petitioner sent a reply dated 20th November, 1988 requesting the authority concerned to sanction medical leave to the petitioner from 5th October, 1988 to 30th November, 1988. The respondent No. 3/Settlement Officer passed an order dated 24th November, 1988 (Amiexure6) to the writ petition terminating the service of the petitioner which is the impugned order in the writ petition.

The petitioner has submitted that the termination order has been passed without any charge sheet or enquiry without following the procedure of law. The petitioner gave a representation before the Consolidation Officer, which was not considered. The petitioner filed a Writ Petition No. 1664 of 1996 which was disposed of on 12th January, 1996 with a direction to decide the petitioner''s representation within a reasonable time in accordance with law. Despite the direction by this Court, the representation could not be decided. The petitioner has filed Contempt Petition No. 2220 of 1996, a notice was issued and Settlement Officer was summoned by this Court on 23rd November, 1996 (Annexure12) however, on the same date, the respondent No. 3 decided the representation.

In the order dated 23rd November, 1996 the Settlement Officer, consolidation has made remarks that the petitioner left the office without prior intimation and remained absent for one and half month, he is careless and works at his pleasure he comes and goes from the office at his sweet will. Certain other aspersions and allegations have been made about his working, functioning, behaviour and his personal conduct. The order dated 23rd November, 1996 is also under challenged in the writ petition.

It has been submitted on behalf of the petitioner that his initial appointment could be made on permanent basis and not as a temporary employee under ''Rule'' 1974'' and the order of termination dated 24th November, 1988 treating the petitioner as temporary could not be passed under ''Rule, 1975'' as this rule is not applicable in the case of the petitioner, while passing the order dated 24th November, 1988 neither any charge sheet was served nor any Inquiry Officer was appointed to inquire into the allegations, if any, against the petitioner.

On behalf of the petitioner, reliance has been placed on the judgment dated 10th January, 2001 of this Court passed in Writ Petition No. 25956 of 1997 [Ajay Kumar Sharma v. State Government of U.P., 2000 (1) ESC 291 (All.)], where the services of the persons under DyinginHarness Rules was terminated under the provisions of U.P. Temporary Government Servant (Termination of Service) Rules, 1975. On challenge of the termination order this Court while deciding the writ petition set aside the termination order treating it to have been passed in violation of principle of natural justice when the appointment on compassionate ground under DyinginHamess cannot be made on temporary or ad hoc frustrating the purpose of ''Rule, 1974''. Learned Counsel for the petitioner has also relied on an order dated 12th February, 1999 passed in Writ Petition No. 39127 of 1997 [Ravi Karon Singh v. State of U.P. and others, 1999 (2) ESC 972 and 1999 (2) AWC 976] of High Court of (D.B.) where this Court has observed that:

"this petition has come up before us on a reference made by the learned Single Judge by his order dated 19th December, 1997. The point involved is very simple, that is, whether an appointment under the DyinginHamess Rules is a permanent appointment or a temporary appointment. According to the learned Single Judge, this Court had earlier held that an appointment under DyinginHarness Rules is a permanent appointment vide Budhi Sagar Dubey v. D.I.O.S., 1993 ESC 21, Gulab Yadav v. State of U.P. and others, (1991) 2 UPLBEC 995 and Dhirendra Pratap Singh v. D.I.O.S. and others, (1991) 1 UPLBEC 427. The learned Single Judge who passed the referring order dated 19th December, 1997 disagreed with the above mentioned decisions and hence has referred the matter to a larger Bench.

In our opinion, an appointment under the DyinginHarness Rules has to be treated as a permanent appointment otherwise if such appointment is treated to be a temporary appointment, then it will follow that soon after the appointment, the service can be terminated and this will nullify the very purpose of the DyinginHarness Rules because such appointment is intended to provide immediate relief to the family on the sudden death of the bread earner. We, therefore, hold that the appointment under DyinginHarness Rules is a permanent appointment and not a temporary appointment, and hence the provisions of U.P. Temporary Government Servant (Termination of Services) Rules, 1975 will not apply to such appointment."

In view of the above if the respondents were really aggrieved by the deficiency in the conduct, working, even behaviour of the petitioner as has been indicated in the order dated 23rd November, 1996 (Annexure12) to the writ petition the respondents might have given charge sheet and framed the specific charges and conduct the inquiry adopting proper procedure under law. In reference to the above referred judgments and in the light of the order of this Court in W.P. No. 41891/97 (Sanjay Kumar v. Deputy Director General, N.C.C., U.P.), the petitioner''s appointment made in the DyinginHarness cannot be made on temporary basis and thus such termination order cannot be made under ''Rule, 1975''. In view of the above observations impugned order dated 24th November, 1988 and 23rd November, 1996 are set aside and the petitioner is allowed to be reinstated in the service with all consequential benefits. It is made clear that since the petitioner is out of job and has not discharged his work therefore, he shall only be entitled for 50% of his back wages after being reinstated in service. The writ petition is allowed without cost.