Sheo Milan Singh vs State of U.P. and Another

Paritosh K. Mukherjee, J.—It appears that on earlier occasion, on December 1, 1995, this case had to be adjourned on the ground that Sri Rakesh Dwivedi, learned Additional Advocate General was out of station.

This case was heard, at a considerable length, on previous occasion as well. The case was marked as part-heard, after hearing Sri Rakesh Dwivedi, learned Counsel appearing for the office of the Advocate General (present Additional Advocate General) and Srt Ravi Kant, learned Counsel for the Petitioner. Since the annexures are In Hindi, learned Counsel for the Petitioner was directed to translate them in English. Sri Ravi Kant has produced the English translation of the Hindi annexures.

Today, when the case has been taken up, neither Sri Rakesh Dwivedi, Additional Advocate General, nor any learned Standing Counsel is present, nor any prayer for adjournment of the case has been made on behalf of the Respondents. Since I have already heard Sri Rakesh Dwivedi on the previous occasion, at a considerable length, I propose to decide the case after hearing Sri Ravi Kant, learned Counsel for the Petitioner.

In the present case, Petitioner challenges the order of termination dated August 5, 1991, which is set out at Annexure 4 to the writ petition. In serial number 6, the name of the Petitioner Is appearing, who has been described as clerk on daily wages in the State Law Office, along with other 15 persons.

Sri Ravi Kant, learned Counsel for the Petitioner contended that the order of termination of the Petitioner was unwarranted as even after passing of the order of termination, Petitioner was allowed to continue till 28th February, 1992. Even thereafter, it has been contended by learned Counsel for the Petitioner, that the Respondents are taking work from the Petitioner. The Petitioner is still working but is not being paid salary. Thus, according to Sri Ravi Kant, the order of termination has not been passed on proper application of mind by the Respondent authorities.

Sri Ravi Kant next contended that although the services of as many as 15 persons were terminated with the Petitioner, but thereafter other persons have been taken back and their services too have been regularised. Therefore, the Petitioner should not have been discriminated, and he too is entitled for regularisation of his services. In support of his aforesaid contention, he drew my attention to paragraphs 11, 12 and 13 of the writ petition. The specific averments made in the aforesaid paragraphs are that S/Sri Lalit Kumar Srivastava, Himanshu Behari Lal Gaur, Sri Prakash, Jai Krishna Lakheda, Mohd. Ashif All, Anil Kumar and Prakash Chandra were reinstated/regularised. These persons were terminated along with the Petitioner through the impugned order dated August 5, 1991. S/Sri Lalit Kumar, Himanshu Behari Lal Gaur and Sri Prakash were appointed alongwith the Petitioner and the record of service of the Petitioner is not inferior to the aforesaid employees.

In the counter-affidavit, the Respondents have denied the assertions made in paragraphs 11, 12 and 13 of the writ petition on the ground that the case of the Petitioner is different from the case of other persons referred to in the aforesaid paragraphs of the writ petition. The Respondents also referred to the judgment in Writ Petition No. 12465 of 1990, Vipin Chandra Shukla and Ors. v. State of U.P. and Ors. which was allowed on 27.1.1992. The State Government went in Special Leave Petition, which too was disposed of with the direction that as and when posts of class III employees are created, the same may be filled up in accordance with rules.

In paragraph 9 of the counter-affidavit, it has been stated that a Selection Committee was constituted which consisted of Sri Ravindra Singh, the then Government Advocate, Allahabad; Sri Bireshwar Nath, Government Advocate, Lucknow, Sri Bengali Yadav, the then Chief Standing Counsel, High Court, Allahabad and Sri Shitla Prasad Srivastava, the then Addl. Chief Standing Counsel (and now an Hon''ble Judge of this High Court). The aforesaid Selection Committee met to consider cases of Sri Vipin Chandra Shukla and 19 others and thereafter made a recommendation for regularising the services of 20 persons.

The justification for retaining S/Sri Lalit Kumar, Himanshu Behari Lal Gaur, Sri Prakash, Jai Krishna Lakhera, Mohd. Ashif All, Prakash Chandra and Anil Kumar has been given that it was in view of judgment dated 27.1.1992 passed by this Court in Writ Petition No. 12465 of 1990.

Sri Ravi Kant, learned Counsel for the Petitioner has drawn my attention to paragraph 5 of the rejoinder affidavit. The averments made in paragraph 5 of the rejoinder affidavit are clinching, and the material extract, there from, is being quoted here in below:

...The true facts are that when the Petitioner applied for fresh appointment and despite interim order passed by this Court, he was discontinued after 28.2.1992. On the aforesaid application, the then Addl. Advocate General put up the following note for consideration of the then Advocate General:

In view of High Court order in W.P. 22446/91 and Supreme Court order, his case is similar to that of Sri Prakash. He should be continued till fresh selection. However, he has been out of job for sometime. So, he may be kept afresh with salary from date of reinstatement.

Sd/- Illegible 15.5.93.

Sri Ravi Kant also pointed out that the aforesaid recommendations were made, none else, than the present Additional Advocate General, namely, Sri Rakesh Dwivedi. He cannot now back out after giving opinion in the aforesaid manner. It is presumably because of this reason that Sri Rakesh Dwivedi did not appear today.

Having heard Sri Ravi Kant, learned Counsel for the Petitioner, as well as, Sri Rakesh Dwivedi (who was heard on the last occasion), I find force in the submissions made by learned Counsel for the Petitioner. Logically, the Petitioner is entitled to the same benefit which those, regularised, received in the absence of any distinguishing feature in his case. In the present case, the treatment meted to the Petitioner suffered from the vice of arbitrariness and Article 14 forbids any arbitrary action which would tantamount to denial of equality as guaranteed by Article 14.

I have arrived to the aforesaid conclusion in view of settled position of law by Hon''ble Supreme Court in Sengara Singh and Ors. v. State of Punjab and Ors. AIR 1984 SC 1499, wherein, in the similar set of facts and circumstances, their Lordships of Supreme Court held as under:

...If the indiscipline of a large number of personnel amongst dismissed personnel could be condoned or overlooked and after withdrawing the criminal cases against them they could be reinstated, there was no justification in treating the Petitioners differently without pointing out how they were guilty of more serious misconduct... .

Similar view was also taken by Apex Court in E.S. Reddy v. Chief Secretary Government of Andhra Pradesh and Anr. 1987 (54) FLR 697. In the aforesaid case, the Petitioner, an officer of Indian Administrative Service cadre, complained that all Involved officers were not suspended but Government selected in suspending only a few including the Petitioner and the Hon''ble Supreme Court held that the action of the Government was violative of Article 14 of the Constitution.

The facts of the case in hand are similar to the facts of the cases, decided by Apex Court, referred to hereinabove. It is a clear-cut case of discrimination. By their conduct, the Respondents are now estopped from taking any other plea. Even after termination of the services of the Petitioner, the Respondents are continuously taking work from the Petitioner.

In the result, the writ petition succeeds and is allowed. The Petitioner, who is still working on daily wages, is entitled to be regularised from the date persons, who were appointed along with Petitioner, have been regularised. The Petitioner is also entitled to salary and allowances, as dally wage worker for the period he has actually worked.