Shree Pal Singh vs District Magistrate and Others

D.S. Sinha, J.—Heard Sri Yogesh Kumar Saxena, learned counsel for the Petitioner and Sri S. N. Verma, learned Standing Counsel representing the Respondents No. 1, 2, 3 and 4.

The Petitioner, an erstwhile temporary collection peon of Tehsil Bhongaon, district Mainpuri, invokes the jurisdiction of this Court under Article 226 of the Constitution of India for redressal of his grievance against the order dated 4th April, 1905, passed by the Sub-Divisional Officer/Sub-District Magistrate, Tehsil Bhongaon, district Mainpuri, the Respondent No, 2, a copy whereof is Annexure ''9'' to the petition, purporting to dispense with his service.

Asserting that he was selected on regular basis for appointment on the post of collection peon in accordance with the provisions contained in U.P. District Office Collectorate Ministerial Service Rules, 1980 read with Group ''D'' Employees Service Rules, 1985, he claims that dispensation of his services without observing the principle of natural justice id est without affording him any opportunity of hearing to him, is bad in law and liable to be struck down.

Noticing the above assertion, the Court passed the following order on 3rd May, 1995:

The Petitioner has asserted that he had been selected on regular basis for appointment on the post of Collection Peon in accordance with the provisions contained in U.P. District Office Collectorate Ministerial Service Rules, 1980 read with Group ''D'' Employees Service Rules, 1985.

Learned counsel for the Petitioner prays for and is granted one week''s time to file the certified copy of the select list contemplated under Rule 21 of the aforesaid Rules, 1985. The Respondent No. 2 shall ensure that in case the application for the purpose of supplying the certified copy of the aforesaid select list is submitted by the Petitioner before the said authority, a certified copy of the select list shall be supplied to him on payment of necessary charges and in case no such select list has been prepared or no selection has been held as claimed, this fact shall be clearly indicated in the order disposing of the aforesaid application.

List/put up this petition for admission on 17.5.95.

In view of the order of the court dated 3rd May, 1995, a supplementary affidavit has been filed by the Petitioner and a certified copy of the proceedings which culminated into the temporary appointment of the Petitioner is appended as Annexure "S. A.-3" thereto.

From the pleadings contained in the petition and the supplementary affidavit and from the facts mentioned in the certified copy of the proceedings relating to appointment of the Petitioner as temporary collection peon, the following undisputed sequence of events emerge:

The Petitioner was given opportunity to work as seasonal Collection Peon on several occasions during the period between 7th July, 1982 and 26th September, 1990.

Consequent upon the retirement of Sri Diwari Lal, a regular Collection Peon, on 31st March, 1994 a substantive vacancy on the post of regular Collection Peon arose which was proposed to be filled by appointment of an officiating Collection Peon Sri Purushottam Singh. But, it appears, on account of certain administrative exigencies the proposed appointment of Sri Purushottam Singh was not found appropriate, and the concerned authorities initiated process of filling up the vacancy afresh.

On 4th May, 1994 the W. B. N.. an official of the Tehsil associated with the collection of revenue, submitted a report to the Sub-Divisional Officer/ Tehsildar, recommending the appointment of the Petitioner. The report was processed by the Naib Tehsildar and he agreed with it. Thereafter, the Tehsildar transmitted the report of the Naib Tehsildar, alongwith his recommendation for the appointment of the Petitioner, to the Sub-Divisional Officer. The Sub-Divisional Officer by his order dated 6th May, 1994 approved the appointment of the Petitioner for a period of three months.

The appointment of the Petitioner, being fixed-term appointment, could continue only for a period of three months unless it was extended further. The appointment was not extended, and the time bound appointment of the Petitioner came to an end.

However, on 24th October, 1994, W. B. N. made another proposal for giving to the Petitioner fulltime temporary appointment terminable without any prior notice. The proposal was counter-signed by the Naib-Tehsildar and Tehsildar on 24th October, 1994 itself. Eventually, the Sub-Divisional Officer by his order dated 28th October, 1994 approved the proposal. Thus, the Petitioner was given appointment on the post of Collection Peon purely on temporary basis on condition that his appointment was terminable without any previous notice.

Accepting the appointment of collection peon, purely on temporary basis and terminable without notice, the Petitioner Joined the post.

On 4th April, 1995 the Sub-Divisional Officer/Sub-District Magistrate passed an order purporting to bring to an end the temporary employment of the Petitioner. This order is the foundation of the grievance of the Petitioner and is under challenge in instant petition.

The principal, and in the fore-front, submission on behalf of the Petitioner is that the order dated 4th April, 1995 is bad in law in as much as was passed in violation of the principle of natural Justice, namely, the opportunity of hearing to the Petitioner against, the action of bringing about the termination of his service.

Under the circumstances, the court is called upon to decide as to whether the Petitioner was legally entitled to any opportunity to hearing before his employment was brought to an end by the impugned order; and that the denial of such an opportunity resulted in any legally cognizable infirmity Justifying intervention by this court in exercise of its discretionary Jurisdiction under Article 226 of the Constitution of India.

An incumbent who has been given appointment purely on temporary basis, terminable without notice, has no right to hold the post and he is not entitled to any opportunity of hearing before his service is dispensed with. The decisions rendered by the Hon''ble Supreme Court of India in the cases of Parshotam Lal Dhingra Vs. Union of India (UOI), ; State of Uttar Pradesh and Another Vs. Kaushal Kishore Shukla, ; Triveni Shankar Saxena Vs. State of U.P. and others, ; Commissioner, Food and Civil Supplies, Lucknow, U.P. and Another Vs. Prakash Chandra Saxena and Another, ; Ram Chandra Tripathi Vs. U.P. Public Services Tribunal IV and Others, and Madhya Pradesh Hasta Shilpa Vikas Nigam Ltd. Vs. Devendra Kumar Jain and Others, , leave no room for taking any contrary view.

The Petitioner being an incumbent given temporary appointment liable to be brought to an end without any previous notice had no legally cognizable and judicially enforceable right on the post of collection peon, and was, therefore, not entitled to any opportunity of hearing before termination of his appointment.

In the case of Ravi S. Naik and Sanjay Bandekar Vs. Union of India and others, , the Hon''ble Supreme Court has very clearly laid down that "A breach of procedure, whether called a failure of natural Justice, or an essential administrative fault, cannot give" aggrieved person "a remedy in the courts, unless behind it their is something of substance which has been lost by the failure. The court does not act in vain."

Therefore, mere breach of any principle of natural Justice is of no consequence, and cannot nullify the order if such order does not affect any vested right of the aggrieved person. Non-observance of any principle of natural justice must result in loss of something of substance in order to entitle the Petitioner to invoke the Jurisdiction of High Court under Article 226 of the Constitution of India.

Learned counsel for the Petitioner attempted to make out some capital in favour of the Petitioner from the use of the Hindi words ''niyukti nirast in the impugned order whereby purely temporary services, of the Petitioner have been brought to an end. According to him ''niyukti nirast'' meant ''appointment cancelled''. He, therefore, argued that may be that the purely temporary and terminable without any notice employment of the Petitioner could be brought to an end without any opportunity of hearing being given to him. but his appointment could not be cancelled without giving him opportunity of being heard.

It is to be remembered that what is to be seen is the import and impact of the order as a whole, and not only a few words used therein. No word used in an order can be read de hors the context in which it Is used. Tested on this touch- stone, there is no doubt that the import and impact of the impugned order is to terminate the purely temporary and terminable without any notice employment of the Petitioner on the post of collection peon which he had no vested right to hold. The use of the words ''niyukti nirast'' may be inappropriate, but the import is discernible. The predominant intention of the impugned order is clearly to terminate the absolutely temporary service of the Petitioner. The use of inappropriate words ''niyukti nirast'' in the impugned order is immaterial and inconsequential. After all, the words are merely vehicles used to convey the thoughts and ideas. If the thoughts and ideas are clearly and understandably conveyed, the use of inappropriate words sinks into insignificance and no umbrage can be taken to the same.

The order of appointment had vividly conveyed to the Petitioner that his appointment was purely temporary and liable to be terminated any time without notice, and he had accepted the same with eyes wide open. Therefore, the alleged lapse of using inappropriate words ''niyukti nirast'' in the impugned order has not resulted in any manifest injustice to the Petitioner as he had no vested right to hold the post of collection peon. The loadstar for exercise of jurisdiction under Article 226 of the Constitution of India is the fadure of justice and prevention of injustice. Any infirmity, either legal or factual, which does not result in failure of justice cannot be the substratum for exercise of special and extraordinary jurisdiction under Article 226 of the Constitution of India.

Learned counsel for the Petitioner invites the attention of the Court to certain averments made in the writ petition suggesting mala fides in the impugned action of termination of the employment of the Petitioner. However, he very fairly concedes that on these assertions the plea of a mala fides cannot be sustained.

All told, the Court is clearly of the opinion that the petition has no substance and is liable to be dismissed. It is dismissed accordingly.