Indra Kumar Singh and Another vs State of U.P.and Others

Sanjay Misra, J.—Heard learned counsel for the petitioners and learned Standing Counsel for the respondents.

The petitioners who are two in number, have filed this writ petition for quashing the notice dated 18.1.1996 (annexure Nos.1 and 2 to the writ petition) whereby the services of the petitioners as parttime Tubewell Operators were terminated on the ground that the Tubewell where they were working has become unoperational. By an interim order of this Court the respondents were directed to consider the case of the petitioners a fresh. Upon considering the matter, the respondents have passed the order dated 9.8.1996 whereby they have rejected the representation of the petitioners. The petitioners have therefore, amended the writ petition and sought quashing the aforesaid order dated 9.8.1996 also.

Learned counsel for the petitioners contends that the petitioners were initially appointed after being duly selected on 25.10.1982, by the appointment letter dated 25.10.1982 on a consolidated pay of Rs.150/ per month. The said appointment order contemplated that the services of both the petitioners are purely temporary and can be terminated at any time on notice of one month or pay in lieu thereof and also in case their services are not required or their services are found insatisfactory. According to learned counsel for the petitioners, they joined as part time Tubewell Operators in pursuance of the aforesaid appointment letter dated 25.10.1982. The respondents issued a Government Order dated 20.2.1992 (Annexure No.6 to the writ petition) and redesignated the part time Tubewell Operators as Tubewell Assistant and fixed their emoluments afresh. The said Government Order was challenged by various part time Tubewell Operators in a bunch of writ petitions leading writ petition being writ petition No.3558 (S/S) of 1992, Suresh Chandra Tewari and others v. State of U.P. and others. This Court by its judgment and order dated 18.5.1994 quashed the Government Order dated 20.2.1992 and held that the parttime Tubewell Operators who were redesignated as Tubewell Assistants were performing the same nature of duties as the regular Tubewell Operators and held that it was highly improper to change the nomenclature of parttime Tubewell Operators to that of Tubewell Assistants without there being any one to whom they could render the assistance. The change in the nomenclature was held to be not done bonafide. The writ petitions were allowed. The Government Order dated 20.2.1992 by which the nomenclature of the petitioners was changed and honorarium was fixed per month was quashed. The respondents were directed to pay all the petitioners the same emoluments i.e. same pay scale to which regularly appointed Tubewell Operators were entitled. The aforesaid judgment of this Court attained finality when the Special Leave Petition filed by the State of U.P. was dismissed by the Hon''ble Apex Court. It has been pointed out that a review was filed by the State of U.P. before Hon''ble Apex Court which was also dismissed.

Learned counsel for the petitioners submitted that upon passing of the aforesaid judgment of this Court, the petitioners had preferred the writ petition No.4574 (S/S) of 1995 for being given the benefit of the judgment in the case of Suresh Chandra Tewari (supra). This Court by an interim order dated 29.1.1996 directed the respondents to give the benefits to the petitioners. The said writ petition is still pending. According to learned counsel for the petitioners, upon issuance of the Government Order dated 20.2.1992, the respondent authority issued an office memorandum dated 4.8.1992 whereby they redesignated the petitioners and like persons as Tubewell Assistants in view of the Government Order dated 20.2.1992. Since according to learned counsel for the petitioners, the said Government Order has been set aside, therefore, the petitioners'' services were to be governed as directed by the Court in Suresh Chandra Tewari''s case. In the office memorandum dated 4.8.1992 (Annexure No.7 of the writ petition), the respondents inserted fresh service conditions upon the petitioners. The said conditions were that the petitioners would be entitled to an honorarium of Rs.550/ per month, the nomenclature will be changed from parttime Tubewell Operators to Tubewell Assistants and their services were liable to be terminated, in case the Tubewell where they are working be rendered unoperational. Learned counsel for the petitioners states that when this Court had set aside the Government Order dated 20.2.1992, then the office memorandum dated 4.8.1992 whereby the service condition of the petitioners were changed also became inoperative and the petitioners continued to work as Tubewell Operators and were entitled to the benefits of the judgment of this Court. He states that conditions imposed by the office memorandum dated 4.8.1992 passed upon the Government Order dated 20.2.1992 did not apply to the service condition of the petitioners any further. On this premise, learned counsel for the petitioners states that the impugned order dated 18.1.1996 (Annexure No.1 to the writ petition) cannot be upheld inasmuch as the only ground shown therein for terminating the employment of the petitioners is that the tubewells where they are working have become unoperational. According to him, this was not a condition for terminating the employment of the petitioners under their appointment orders dated 25.10.1982. He states that the impugned orders are also liable to be set aside on the ground that this Court in its judgment dated 18.5.1994 has clearly held that the part time Tubewell Operators cannot be redesignated as Tubewell Assistants and honorarium of Rs.550/ per month fixed by the Government Order was struck down by the Court. When the petitioners became entitled to the same pay scale as being paid to regular Tubewell Operators their services could not have been terminated on the conditions imposed by the office memorandum dated 4.8.1992 in view of the Government Order dated 20.2.1992 which had already been quashed by this Court.

Learned counsel for the petitioners has stated that insofar as the non operational tubewells are concerned, there have been instances with respect to other parttime Tubewell Operators whereby respondents have transferred such parttime Tubewell Operators to work at other tubewells and therefore, according to him, there are several parttime Tubewell Operators still working although the tubewells where they had been assigned had become unoperational and they were transferred to other operational tubewells. He has referred to paragraph 20 of the writ petition where it has been averred as quoted hereunder:

�That in the case of failure of tubewells, respondents have been transferring the Tubewells Operators to other tubewells in past. In this regard, it may be stated here that petitioner No.1, who was appointed on Tubewell No.46MG was transferred twice vide orders dated 19.5.1989 and 11.8.1992. It may be stated here that vide order dated 19.5.1989, petitioner was transferred to Tubewell No.35 MG, whereas, vide order dated 11.8.1992 he was transferred to Tubewell No.34 MG. Presently, petitioner No.1 is working at Tubewell No.34MG, Nalkoop Khand, Sultanpur, Petition No.2, who was appointed against Tubewell No.39 MG is presently operating two tubewells i.e. Tubewell No.39MG & 55 MG in Nalkoop Khand Divisions, Sultanpur, on double charge basis. In this view of the matter, in the event of failure of tubewells, respondents could have transferred the petitioners to the tubewells, which are in working conditions. The impugned action of disengaging the petitioners from service is illegal and arbitrary, as respondents are trying to shift their obligation/responsibility to the poor employees of the Deptt. It is categorically stated here that renovation/reconstruction of tubewells is the business of Department and petitioners cannot be held responsible for the failure of tubewells. True copies of the orders dated 19.5.1989 and 11.8.1992 are being annexed herewith as Annexure Nos.11A & 11B respectively to the writ petition.�

It has also been stated that renovation and reconstruction of tubewells is the business of the department hence even if a tubewell has been rendered inoperative, the department always renovates or reconstructs it, hence the petitioners cannot be said to have been rendered surplus. Therefore, also their services could not have been terminated by the impugned notice.

The other contention of learned counsel for the petitioners is that the rules known as Uttar Pradesh Irrigation Department Regularisation of PartTime Tubewell Operators. On The Post of Tubewell Operators Rules, 1996 were enforced with effect from 16th December, 1996. Under the aforesaid rules, it was provided that a person appointed on the post of parttime Tubewell Operator before 1.10.1986 and is continuing in service on the date of commencement of the rules and possessed the requisite qualifications prescribed shall be considered for regular appointment to the post of Tubewell Operator in the concerned tubewell division on the basis of his record and suitability before any regular appointment is made on such post in accordance with the service Rules. Learned counsel for the petitioner basing his claim on the Rules states that admittedly the petitioners were appointed before 1.10.1986 and were continuing in service till passing of the impugned orders dated 18.1.1996. According to him, the impugned orders are liable to be set aside and upon the same being done they would be entitled to the benefit of the Regularisation Rules of 1996.

It is also stated that when the grievance of the petitioners was reconsidered by the respondents they passed the order dated 9.8.1996 basing the same on an alleged Tubewell Assistants Service Ruels vide letter dated 20.7.1992 and rejected their claim on the ground that if the tubewell is rendered inoperative the services of the parttime Tubewell Operator can be terminated. According to learned counsel for the petitioners, the said alleged Rules have been filed by the respondents in their counter affidavit, as Annexure No.1 to the counter affidavit. While referring to Annexure No.1 to the counter affidavit, he states that a perusal thereof would clearly indicate that the reference made to the letter dated 20.7.1992 was only guidelines issued for selection of Tubewell Assistants and they were not Rules as has been stated to be in the impugned order dated 19.8.1996. He, therefore, states that the premise for consideration of the petitioners'' case taken by the respondents in the impugned order dated 9.8.1996 was itself erroneous and therefore, the said order is liable to be set aside on that score alone.

Learned Standing Counsel, on the other hand, while placing reliance on the averments made in the counter affidavit has stated that in accordance with the terms and conditions of appointment of the petitioners their services have been validly terminated since they were no more required as the tubewells whereupon they had been assigned, had become nonfunctional. He submits that the said condition was imposed by the office memorandum dated 4.8.1992 and hence no error can be found in the impugned orders. His contention also is that the guidelines referred to by the letter dated 20.7.1992 clearly provides that the criteria of selection of Tubewell Assistants shall consist of certain conditions as provided therein. It was a clear condition mentioned in the aforesaid guidelines that when tubewells become unoperational the requirement of the parttime Tubewell Operators would cease and their employment would be liable to be terminated. He states that when such condition was imposed upon the services of the petitioners no error can be found in the impugned order dated 9.8.1996 passed by the respondents on reconsideration of the grievance of the petitioners.

Insofar as the 1996 Rules are concerned, according to learned Standing Counsel the benefit of the same cannot be given to the petitioners. He has referred to Rule 4(1)(i) to state that the condition is that he must have been appointed as parttime Tubewell Operators before 1.10.1986 and should be continuing in service as such on the date of commencement of these rules. The Rules admittedly came into force on 16th December, 1996 and according to him, the petitioners who were terminated on 18.1.1996 do not qualify the basic requirement for being given the benefit of the aforesaid Ruels. His further submissions is that before this Court in the case of Suresh Chandra Tewari (supra) the State had clearly taken the plea that the appointment of parttime Tubewell Operators, is made in their village of residence and they cannot be transferred. Consequently, he states that when the tubewell itself has become unoperational in the village where the petitioners resided their services were no longer required and hence, were rightly terminated.

Having considered the submission of learned counsel for the parties and gone through the record, the fact that cannot be denied and is part of the record is that the petitioenrs'' services were terminated only on the ground that the tubewells where they were assigned have become unoperational. The Government Order dated 20.2.1992 had brought in such a condition. The office memorandum dated 4.8.1992 had imposed the said service conditions by virtue of the said Government Order. This Court while considering the aforesaid stand of the respondents in the case of Suresh Chandra Tewari (supra) had clearly held that the change of nomenclature of the parttime Tubewell Operators to that of Tubewell Assistants could not be done. This Court recorded a finding that these parttime Tubewell Operators were performing the same duties as regular Tubewell Operators and therefore, no case was made out to show that they were required to assist any other Tubewell Operator. The Court found that the Government Order dated 20.2.1992 required to be set aside and therefore, allowed the writ petitions bringing the parttime tubewell Operators at par with regularly appointed Tubewell Operators. Therefore, when the office memorandum dated 4.8.1992 imposed the condition of termination of parttime tubewell Operator on the tubewells becoming unoperational only on the basis of the aforesaid Government Order dated 20.2.1992 such condition cannot be enforced on the petitioners when the Government Order itself was set aside on 18.5.1994. The grounds taken in the impugned orders that the tubewells having become unoperational hence, the petitioners'' services can be terminated was not contemplated in their appointment letter. Admittedly the petitioners have been working since the year 1982. While in service they were entitled to the benefit of the judgment dated 18.5.1994 passed in Suresh Chandra Tewari''s case. They were entitled to be paid the regular pay scale instead of honorarium. It was held that they are performing the same duties as regularly appointed Tubewell Operators. The Government Order placing fresh service conditions was set aside. Other parttime Tubewell Operators were accommodated at various other tubewells and were retained in Service. Regularisation Rules 1996 were enforced making those eligible who were appointed prior to 1.10.1986.

Apart from the above the petitioners were admittedly working when this Court quashed the Government Order dated 20.2.1992 and entitled them to the same benefits as paid to the regularly appointed Tubewell Operators. The status of the petitioners did not remain as parttime Tubewell Operators. Termination of their services therefore, would involve civil consequences. Hence, they were entitled to show cause notices and principles of natural justice was required to be followed. In the absence of any opportunity of being heard the rights of the petitioners that had matured after the judgment dated 18.5.1994 was adversely affected and they have been prejudiced. Under these circumstances, the petitioners were entitled to a reasonable opportunity before their services were terminated.

The Hon''ble Apex Court in the case of P.L. Dhingra v. Union of India, AIR 1958 SC 36, while considering the expressions ''termiante'' or ''discharge'' held as quoted hereunder:

�The use of the expression ''terminate'' or ''discharge'' is not conclusive. In spite of the use of such innocuous expressions, the court has to apply the two tests mentioned above, namely:

(1) whether the servant had a right to the post or the rank or

(2) whether he has been visited with evil consequences of the kind hereinbefore referred to. If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the Rules and Article 311, which gave protection to government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant.�

The petitioners were admittedly not regularly appointed Tubewell Operators but this Court in Suresh Chandra Tewari''s case held them entitled to all the benefits at par with regular Tubewell Operators thereby removing the nomenclature of ''parttime'' or ''assistant'' from their designation. Hence, it can be said that the petitioners were no more parttime Tubewell Operators or even Tubewell Assistants. They were Tubewell Operators performing the same duties and entitled to the same benefits as regular Tubewell Operators. The petitioners have been referred to as parttime Tubewell Operators in the impugned notice. Such reference is apparently in conflict with the decision of this Court in the case of Suresh Chandra Twari (supra).

The petitioners have also brought on record that even in the past they have been transferred from one tubewell to another. The respondents have given a vague reply to the specific instances of transfer averred by the petitioners in the writ petition. Therefore, upon those pleadings the argument that these Tubewell Operators are appointed only for the tubewells of the village where they reside is not borne out from the record. Consequently, their termination on the ground that the tubewell assigned to them has become unoperational cannot be a valid or just ground.

The petitioners have also brought on record a judgment of this Court in a bunch of writ petitions, leading writ petition being writ petition No.2246 of 1986, Ajai Kumar Srivastava v. Executive Engineer & others, decided on 1.1.1990 (a true copy has been annexed along with Rejoinder Affidavit). This Court was considering the termination of employees including parttime Tubewell Operators working under the respondents. It was recorded therein that the Irrigation Department is a vast establishment and the provision of irrigation facilities to the farmers is a continuous process and the petitioners therein could be absorbed. The termination orders were therefore, quashed and the petitioners therein were required to be appointed in service.

Since the impugned orders dated 18.1.1996 and 9.8.1996 are based on the same premise of the conditions imposed by Government Order dated 20.2.1992, the same cannot be sustained and are liable to be set aside. For the aforesaid reasons, the impugned orders dated 18.1.1996 and 9.8.1996 as contained in Annexure Nos. 1 and 2 to the writ petition and Annexure S.A.1 to the supplementary affidavit, are set aside.

Insofar as the claim of benefit of the Regularisation Rules, 1996, is concerned, it will be seen that the petitioners qualified the condition having been appointed parttime Tubewell Operator prior to 01.10.1986. It is not the case of the respondents that the petitioners do not possess the requisite qualification prescribed for regular appointment to the post of Tubewell Operator. The only condition which is alleged to have not been fulfilled by the petitioner, is that on 16th December, 1996 when the Rules came into force, the petitioners were not continuing in service on such date. Insofar as this aspect is concerned, the impugned order dated 18.1.1996 terminating the service of the petitioners having been set aside it is obvious that the petitioners were prevented from continuing in service by the respondents and not due to any fault on their part. Therefore, for consideration for regularisation under the 1996 Rules, the respondents should reconsider their eligibility. It is not disputed that the appointment of the petitioners was made after due selection. At that time there were no service rules. Therefore, the submission on behalf of respondents'' counsel on the contrary cannot be accepted. It is therefore, directed that the respondents should reconsider the petitioners eligibility for being considered under Uttar Pradesh Irrigation Department Regularisation of Parttime Tubewell Operators On The Post of Tubewell Operators Rules, 1996. The said consideration should be made as expeditiously as possible preferably within three months from the date a certified copy of this order is produced before them by the petitioners and in case the petitioners are found eligible for consideration under the Rule of 1996 their case should be considered as expeditiously as possible.

The writ petition is allowed. No order is passed as to costs.

(Petition allowed)