Hari Mohan Singh vs State of U.P. and Others

Rajiv Sharma, J.—Heard learned Counsel for the Petitioner and learned Standing Counsel.

Petitioner alongwith other persons, on the basis of recommendation by the duly constituted selection committee, were offered appointment on the post of Assistant Boring Technicians by the Executive Engineer (Minor Irrigation Department) Faizabad and in pursuance to the said appointment order, the Petitioner started working at Gonda. By the order dated 26.7.1988, the opposite parties, in violation of the principles of natural justice, not only terminated the services of the Petitioner and other similarly situated persons but also cancelled the entire selection.

Aggrieved by the order dated 26.7.1988, the Petitioner and other similarly situated Assistant Boring Technicians filed writ petitions which were numbered as writ petition No. 6991/SS of 1988 and Writ Petition No. 6854/SS of 1988. In writ petition No. 6854 of 1988 an interim order was passed staying the operation of the impugned termination order and as such the Petitioners of the said writ petition were allowed to work whereas in writ petition No. 6991 of 1988 an interim order was passed to the effect that if the posts are available, the. Petitioners shall be allowed to work but as the Petitioner was one of the Petitioners in writ petition No. 6991/SS of 1988 and on account of non-availability of post, he was not allowed to work. Both the writ petitions were heard together and by means of a common judgment and order dated 20.11.2003, the orders of termination were quashed and as regard the Petitioners of writ petition No. 6991 of 1988, it was directed that the Petitioners shall be reinstated on the existing available vacancies but would not be entitled to get any arrears of salary. It was also provided that since Petitioners of writ petition No. 6854 of 1988 were continuing, they shall continue to receive their salary in accordance with law.

The grievance of the Petitioner is that though he has been allowed to work on the post vide order dated 7.3.2005 but his reinstatement is being considered as re-appointment, as a result of which the salary of the Petitioner has been fixed at initial level of pay scale whereas similarly situated other employees have been given all the service benefits, namely, seniority, pay fixation and increment etc. Not only this, the Executive Engineer has also ordered that the intervening period i.e. the date of termination till the date of passing of order dated 7.3.2005 will not be counted towards pensionary benefits. According to the learned Counsel for the Petitioner, the imposition of this condition is absolutely illegal and without any foundation as the order of termination has been quashed, the Petitioner is entitled for seniority and other service benefits from the date of his appointment and not from any subsequent date i.e. 7.3.2005. Thus anything contrary to the same is not only against the settled law but is also against the final judgment dated 20.11.2003 passed by this Court in writ petition No. 6991/SS of 1988 and 6854/SS of 1988.

To strengthen his argument, learned Counsel for the Petitioner has relied upon the judgment of a Apex Court rendered in the case of Gurpreet Singh Vs. State of Punjab and Others, wherein it has been observed as under:

Having heard the learned Counsel for the parties and on examining the materials on record, we fail to understand as to how the continuity of service could be denied once the Plaintiff is directed to be reinstated in service on setting aside the order of termination. It is not a case of fresh appointment, but it is a case of reinstatement. That being the position, direction of the High Court that the Plaintiff will not get continuity of service cannot be sustained and we set aside that part of the impugned order.

Refuting the contentions advanced by the Petitioner''s Counsel, it has been stated by the Standing Counsel that the Petitioner and other similarly situated employees were given appointment as and when vacancy/post occurred. It has also been stated that after the judgment passed by this Court, the competent authority, which in the present case is the Chief Engineer, Minor Irrigation, passed an order on 7.3.2005 directing reinstatement of the Petitioner. Further, after reinstatement, the controversy in respect of seniority, service period, calculation of pension etc. cannot be raised. Lastly, it has been submitted that the judgment and order dated 20.11.2003 has fully been complied with and there is no illegality or infirmity in the appointment order of the Petitioner.

As the judgment and order dated 20.11.2003 was not being complied with by the opposite parties in its letter and spirit, Hari Mohan Singh and five others preferred a contempt petition bearing No. 918/C/2004 in which on 28.4.2005 the learned Contempt Judge passed an order directing the opposite parties to look into the matter and pass appropriate orders by passing a speaking and reasoned order relating to Petitioner''s seniority and other benefits.

As directed by the learned contempt judge, the case of the Petitioner was considered and by means of the order dated 5.4.2006, the claim of the Petitioner was rejected inter-alia on the ground that as the Petitioner has not worked after passing of termination order till the date of reinstatement i.e. 7.3.2005 and further he has not been paid any salary as such there is no question for giving benefit of seniority. The said order dated 5.4.2006 passed in compliance of the order passed by the Contempt Judge as well as the order dated 7.3.2005 have been assailed in the instant writ petition inter-alia on the ground that this Court by the judgment and order dated 20.11.2003 has provided for reinstatement and as such in view of the meaning of the word ''reinstatement'' the Petitioner should have been granted continuity in service

In Words and Phrases (Volume 36A) the word ''''reinstatement" means restoration to a state from which one has been removed. In Oxford Dictionary the word "reinstatement" means restore to a previous position. Similar meaning has been given on page 1061 of Advanced Learners Dictionary. In Encyclopaedic Law Dictionary by Dr. A.R. Biswas the meaning of the word "reinstate" has been given as to place in the same position as before; to restore to the previous position or state. Reinstatement involves put ling the specified person back, in law and in fact, in the same position as he occupied in the undertaking before the employer terminated his employment. Hodge v. Ultra Electric Ltd. 1943 (1) KB 462. To reinstate a man is to replace him in the position from which he was dismissed and so to restore the status quo ante the dismissal.

Reinstatement can only arise where a man has been dismissed or removed from Service or his service is terminated, and he is brought back to service. It does not apply where a person is merely suspended. Hemanta Kumar Bhattacharjee Vs. Union of India (UOI) and Others, .

For the reasons stated above, it is quite clear that as the order of termination dated 26/30th July, 1988 having been quashed by this Court and a direction was issued to reinstate the Petitioner, the opposite parties cannot deviate and give re-employment or fresh appointment instead of reinstating him in service with all benefits except the salary for the intervening period. It is also not open for the opposite parties to alter the terms of the appointment.

Accordingly, the writ petition is allowed. The sentence occurring in the order dated 7th March, 2005 as well as the order dated 5.4.2006 not allowing continuity in service to the Petitioner is hereby set-aside. It is provided that order of re-employment shall be deemed and treated as an order of reinstatement with continuity of service. Since the Petitioner has already been reinstated, he shall be entitled to all consequential benefits including seniority.