Sita Ram vs Executive Engineer, Irrigation and others

V. M. Sahai, J.—The petitioner was appointed as Beldar on 1.10.69. He continued to work without any break in service on fixed salary of Rs. 1,675 p.m. He worked continuously till 30.6.94. The Executive Engineer. Irrigation, Division (1st), Deoria. by order dated 29.6.94 terminated the services of the petitioner treating him to be a temporary employee under the U. P. Temporary Government Servants (Termination of Services) Rules. 1975 (in brief rules). The petitioner challenged the order dated 29.6.94 by means of the present writ petition.

The respondents have filed counter-affidavit wherein it was stated that the petitioner was appointed on temporary basis. The work of the petitioner was unsatisfactory which has been marked in his character roll. The petitioner was work charge Beldar and there is no requirement for continuing the petitioner as the work is over. The services of the petitioner was rightly terminated under the rules.

1 have heard Shri H. K. Misra learned counsel for the petitioner and Shri Gautam Chaudhary learned standing counsel for the respondents.

Counsel for the petitioner argued that the petitioner has worked for about 25 years as Beldar and the petitioner''s services have been terminated by the respondents without giving any opportunity of hearing to him. The termination of the petitioner''s services under the rules is an abuse of the rules. The post on which the petitioner was working Is still existing and it has not been abolished. He further argued that the termination order is liable to be set aside on humanitarian grounds. The learned standing counsel argued that since the petitioner was a temporary employee, his services could be terminated under the rules by giving one month''s notice and there is no illegality in the termination order dated 29.6.94.

The argument of the respondents that there is no work or post available for the petitioner cannot be accepted. The main concern of the Court in such matters is to ensure the Rule of Law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. It also means that the State should not exploit its employees nor it should seek to take advantage of their helplessness. The State must be a model employer.

The Apex Court in State of Haryana and others Vs. Piara Singh and others etc. etc., observed as under :

"Where a temporary or ad hoc appointment is continued for long the Court presumes that there is need and warrant for a regular post and accordingly directs regularisation. The principles relevant in this behalf are stated by this Court in several decisions, of which it would be sufficient to mention two "decisions having a bearing upon the issue Involved here. They are The Dharwad Distt. P.W.D. Literate Daily Wages Employees Association and others, etc. Vs. State of Karnataka and others etc., ; The Dharwad Distt. P.W.D. Literate Daily Wages Employees Association and others, etc. Vs. State of Karnataka and others etc., : AIR 1990 SC 883 and Jacob v. Kerala Water Authority. 1990 Suppl. (1) SCR 562 ; AIR J990 SC 2228. In the first case, it was alleged that about .60,000 persons were being employed on daily-rated or on monthly-rated basis over a period of 15 to 20 years, without regularising them. It was contented that the very fact that they are continued over such a long period is itself proof of the fact that there is regular need for such employment. In that view of the matter, following directions were given, after reviewing the earlier decisions of this Court elaborately (at pp. 890-91 of AIR) :"

The Apex Court in The Dharwad Distt. P.W.D. Literate Daily Wages Employees Association and others, etc. Vs. State of Karnataka and others etc., , issued direction for regularising the services of those employees who had completed ten years of service. In Jacob M. Puthuparambil and others Vs. Kerala Water Authority and others, , direction for regularisation was issued with immediate effect without waiting for the State Government approval.

In Slate of Haryana (supra), the Apex Court further laid down :

"So far as the work-charged employees and casual labour are concerned, the effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualifications, if any, prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spell-say two or three years-a presumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularisation. While doing so. the authorities ought to adopt a positive approach coupled with an empathy for the person. As has been repeatedly stressed by this Court, security of tenure is necessary for an employee to give his best to the job."

It is not disputed by the respondents that the petitioner has been continuously working for 25 years as Beldar. If an employee continues for such a long period in a service, then the presumption is that the work is available on which he had been working. In the counter-affidavit, it was alleged that the work of the petitioner was unsatisfactory which was marked in his character roll. This bald statement made in the counter-affidavit without being supported by documentary evidence cannot be accepted. Nothing has been brought on the record to indicate as to how the work of the petitioner was unsatisfactory. In paragraph 12 of the writ petition, the petitioner has clearly stated that the post is lying vacant and has not been abolished and the work is still existing. This has not been denied by the respondents in paragraph 10 of the counter-affidavit. There is no reason for terminating the services of the petitioner after he has put in about 25 years of service under the rules.

If the services of a temporary employee is terminated after 25 years, then it gives rise to various human problems. The Apex Court in H.C. Puttaswamy and others Vs. The Hon''ble Chief Justice of Karnataka High Court, Bangalore and others, , has held as under :

"The human problem stands at the outset in these cases and it is that problem that motivated us in a allowing the review petitions. It may be recalled that the appellants are in service for the past 10 years. They are either graduates or double graduates or post graduates as against the minimum qualification of S.S.L.C. required for Second Division Clerks in which cadre they were originally recruited. Some of them seem to have earned higher qualification by hard work during their service. Some of them in the normal course have been promoted to higher cadre. They are now overaged for entry into any other service. It seems that most of them cannot get the benefit of age relaxation under Rule 6 of the Karnataka Civil Services (General Recruitment) Rules 1977. One could only imagine their untold miseries and of their family if they are left at the midstream. Indeed, it would be an act of cruelty at this stage to ask them to appear for written test and viva voce to be conducted by the Public Service Commission for fresh selection."

The effect of the termination order is that the petitioner has been uprooted. He has put in 25 years of service and he has become overage for any other service. He cannot seek employment anywhere else. He must be having a family to support. The employers were satisfied with his work for 25 years. After a employee puts in service of 25 years, his services cannot be terminated. Therefore, the law laid down by the Apex Court in H. C. Puttuswamy (supra) applies to the fact of the present case.

The Impugned termination order dated 29.6.94 cannot be upheld for the aforesaid reasons.

In the result, the writ petition succeeds and is allowed. The Impugned order of termination dated 29.6.94 passed by respondent No. 1 Annexure-1 to the writ petition is quashed. The respondents are directed to reinstate the petitioner on Class IV post and shall pay arrears of salary to the petitioner from 29.6.94 till the date of this Judgment at the rate of Rs. 1,675 per month. The respondents are directed to consider the claim of regularisation of the petitioner on a Class IV post in the light of the observations made in this judgment and shall pass appropriate orders. The aforesaid directions shall be complied with by the respondents within a period of two months from the date of production of a certified copy of this judgment before respondent No. 1.

The petitioner shall be entitled to his costs.