Surendra Kumar Singh vs U.P. Financial Corporation and Others

M. Katju, A.C.J. and Umeshwar Pandey, J.—This writ petition has been filed against the impugned order of the Managing Director, U.P. Financial Corporation dated 20.7.2004, Annexure-11 to the writ petition.

We have heard Sri. U.N. Sharma, learned Counsel for the Petitioner and Sri. Satish Chaturvedi for the Respondent. The affidavits have been exchanged and hence we are deciding the petition finally.

A post of Assistant Manager (Finance) in the service of the Respondent No. 1 was advertised in 1981 and the Petitioner was selected and appointed as Assistant Manager (Finance) by order dated 20.6.1981 vide Annexure-8 to the writ petition. After completing the probation the Petitioner was confirmed on 16.7.1982 vide Annexure-5 to the writ petition. He was thereafter promoted as Manager (Finance) on 5.4.1995 vide Annexure-6 to the writ petition and he was confirmed on that post w.e.f. 1.5.1995 vide Annexure-7 to the writ petition.

It is alleged in paragraph 13 of the writ petition that vide order dated 6.11.1997 the Petitioner was allowed to cross efficiency bar and draw higher increment vide Annexure 8 to the writ petition.

The Petitioner was shocked to receive a show cause notice dated 21.6.2004 issued by the Managing Director, copy of which is Annexure-9 to the writ petition. In this show cause notice it was alleged that the Petitioner had obtained appointment as Assistant Manager in the year 1981 by connivance with his brother-in-law Sri. D.K. Mahle, the then Chief Manager (Administration) and in violation of the rules. True copy of the Petitioner''s reply dated 28.6.2004 is Annexure-10 to the writ petition. Ultimately by the impugned order dated 20.7.2004 the Petitioner was dismissed.

A perusal of the impugned order shows that the reason for the Petitioner''s dismissal was that his initial appointment in 1981 was illegal.

In our opinion the impugned order is wholly arbitrary and hence illegal.

It is not necessary for us to go into the question as to whether the Petitioner''s initial appointment as Assistant Manager (Finance) in the year 1981 was valid or not because we are of the opinion that this appointment in 1981 cannot be questioned 23 years later, that is in the year 2004.

It is well-settled by a series of decisions of this Court and the Supreme Court that if an appointment order is to be questioned it must be questioned within a reasonable period thereafter and not after a very long period. Thus, in Kalu Ram v. State of U.P. 2001 (2) AWC 392 (BR) : 2001 LIC 1870 a Division Bench of this Court held that where the Petitioner has put in about 36 years service as Executive Engineer then the consideration of validity of the Petitioner''s diploma on the basis of which he secured the initial appointment after a gap of 36 years is improper and the termination is wholly arbitrary.

In Miss Shainda Hasan Vs. State of Uttar Pradesh and others, , the Supreme Court observed that though the selection of the Appellant was invalid yet since she had been working for 16 years to ask her to leave her job at this stage would be doing injustice.

In Ashok Kumar Sharma and Another Vs. Chander Shekher and Another, , (vide paragraph 23) it was held that it is unreasonable to quash an appointment after 10 years.

In Arun Kumar Rout and Others Vs. State of Bihar and Others, , the Supreme Court held that termination of service after a long time on the ground that the initial appointment was irregular was improper.

In Rajendra Prasad Srivastava v. District Inspector of Schools 1994 (3) ESC 117 (All), it was held that an employee whose initial appointment is bad on account of some infirmity therein but if he has been allowed to work for a long period it will be unfair to remove him from service. A similar view has been taken by another Division Bench in Smt. Rani Srivastava Vs. State of U.P. and Others, .

In Roshni Devi and Others Vs. State of Haryana and Others, , it was found that the employees have worked for more than nine years. Hence it was held that even if their initial appointment were found to be invalid they should not be removed from service.

For the reasons given above the petition is allowed. The impugned order dated 20.7.2004 is quashed.