Pati Raj vs State of U.P.& Ors.

Paritosh K. Mukherjee, J.—Sri Pati Raj, the petitioner, has challenged the order of termination, dated June 15, 1992 contained in Annexure 4 to the writ petition.

The impugned order, dated June 15, 1991 has been passed under the provisions of Uttar Pradesh Temporary Government Servants (Termination of Service) Rules, 1975 (hereinafter referred to as ''the Rules of 1975''). The impugned order is in Hindi, and translated into English, it runs as follows:

"In continuation of letter No. Bhu. Sankhya 1392A/6A43 dated (sic) 18,1992 of Additional Director of Agriculture (Administration), the services of Sri Pati Raj, son of Sri Laxman Kamdar, Krishi Beej Bhandar, Basupur Vikas Khand, Jaisinghpur are hereby terminated with immediate effect since the Department is now not required the services of Sri Pati Raj."

Sri M.A. Siddiqui, learned counsel for the petitioner submits that since the petitioner was appointed against a vacant post, as is clear from the letter of appointment dated 18.1.91, contained in Annexure 1 to the Writ petition, he cannot be treated to be a temporary servant within the meaning of Rule 2 of the Rules of 1975. Rule 2 provides that temporary service means officiating, or, substantive service, on a temporary post or officiating post on a permanent post, under the U.P. Government.

He next contended that the order of termination has not been passed strictly in consonance with the provisions contained in Rule 3 of the Rules of 1975, which lays down that services of the Government servant are liable to be terminated at any time by notice in writing, either by Government servant to the appointing authority or vice versa. The period of such notice is one month. Since, in the instant case, no notice was given to the petitioner, nor payment of salary in lieu thereof was made, the impugned order of termination is bad in law.

It has been lastly contended by the learned counsel for the petitioner that the impugned order of termination has not been passed by application of mind by the appointing authority but the same has been passed on the dictate of higher authority, namely, the Additional Director of Agriculture (Administration), and, therefore, it cannot be sustained in law.

On the other hand, Sri D. K. Shukla, learned standing counsel defended the impugned order of termination on the ground that the petitioner being a temporary employee, his services were liable to be terminated at any time. He also urged that the petitioner has worked for only 15 months from January 1991 to middle of June 1992. Thus there was no infirmity in the order of termination, and this court, exercising jurisdiction under Article 226 of the Constitution, would not like to interfere with such valid and legal order of termination of services of the petitioner.

Having heard learned counsel for the parties, and gone through the relevant provisions of Rules of 1975, this Court enquired from the learned counsel for the parties as to whether there is any judgment declaring Rule 9 of the Rules of 1975 or Rule 3 of the said Rules as ultra vires, either by Lucknow Bench of High Court of Judicature at Allahabad, or the Allahabad High Court. No effective reply could be given and the learned counsel for the parties expressed their inability and ignorance.

Be that it may, after going through the Rule 3 of the Rules of 1975, it appears to me that the said rule having not contained any guideline, if challenged in some appropriate case, is liable to be struck down as violative of Article 14 of the Constitution.

Furthermore, Hon''ble Supreme Court, in Manager, Government Printing Press v. B.C. Belliappa, AIR 1979 SC 429 has held that the temporary Government servant is entitled to get notice of show cause before passing of order of termination of his services. The Apex Court has deprecated the termination of service of a temporary Government servant, as well as, a probationer. This judgment of the apex Court has been consistently followed, except in the case of State of U.P. v. Kaushal Kishore, 1991(1) SCC 691, wherein it was considered as to whether the order of termination is punitive in nature.

However, in the present case, there is no challenge of Rule 3 of the Rules of 1975 and therefore, this Court is not called upon to decide the vires of the same.

That apart, the writ petition is entitled to succeed on the single score that the condition precedent for issuance of termination order, under Rule 3 of the Rules of 1975, having not been fulfilled by simultaneously payment of one month''s salary. In lieu of notice, the impugned order dated 15.6.1992 is liable to be set aside.

Since at the time of moving of the writ petition, the petitioner was not favoured with any order of stay, the petitioner is entitled to reemployment. However, period of absence during this intervening period will not be treated as ''break in service'' by the respondent authorities since the petitioner''s services were terminated illegally and unlawfully.

The writ petition is, therefore, allowed. The respondents are directed to reemploy the petitioner within seven days from the date of production of a certified copy of this judgment and order and pay salary and allowances, admissible under rules, month by month. The respondent authorities will also consider the question of reguiarisation of the services of the petitioner within three months from the date of production of this judgment. However, this order will not preclude the respondent authorities to terminate the services of the petitioner, if his services are, at all, dispensable, in view of appointment on vacant post. The parties shall bear their own costs.