Dashrath Singh vs District Development Officer and Others

Heard learned Counsel for the parties and perused the record.

This special appeal has been filed challenging the validity and correctness of the judgment and order dated 07.01.2005 passed by learned Single Judge in Dasharath Singh v. District Development Officer, Jaunpur another. Civil Misc. Writ Petition No. 26429 of 1996 The appellant has sought relief for setting aside the judgment and order, aforesaid and also to direct the respondent to consider reemployment of the appellant on the post of Jeep Driver against the existing vacancy in preference to fresh candidate.

The contention of learned Counsel for the appellant is that the appellant was appointed on the post of Jeep Driver in the year 1979 and was permitted to continue. Subsequently, he was again given appointment on the post of Driver on temporary basis by the Selection Committee vide order dated 22.11.1985 on sponsoring his name from employment exchange.

Learned Counsel for the appellant further contends that the appellant having driving license is fully qualified for being appointed on the post of Jeep Driver on temporary basis through selection based upon sponsoring appellant''s name from the employment exchange. The order impugned is challenged on the ground that the same suffers from manifest error of law as learned Single Judge has failed to consider pith and substance of the petition.

It appears from the record that by the order dated 10.2.1986 the services of the appellant were terminated and consequently process for fresh recruitment of Jeep Driver were initiated by the department which is now been challenged by the appellant claiming that he should have been given preference in stead of fresh selection having been made.

We have considered the arguments of learned Counsel for the appellant who has placed reliance upon Rule 3 of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975 which have come in force vide Notification dated 11.6.1975. Rule 3 of the aforesaid Rules, reads thus:

Termination of service.- (1) Notwithstanding anything to the contrary in any existing rules or orders on the subject, the services of a Government servant in temporary service shall be liable to terminate at any time by notice in writing given either by the Government servant to the appointing authority or by the appointing to the Government servant.

(2) The period of notice shall be one month:

Provided that the service of any such Government servant may be terminated forthwith, and on such termination the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances, if any, for the period of the notice or as the case may be, period for which such notice falls short of one month at the same rates at which he was drawing them immediately before the termination of his services:

Learned Counsel for the appellant has relied upon paragraphs 6 & 7 of a judgment rendered in the case of Ghaziabad Development Authority and others Vs. Sri Vikram Chaudhary and others, wherein the Court has noticed that objection taken by the appellant is that Sections 25-F and 25-G have no application in the matter and that as regards the State of U.P. there is a local industrial Disputes Act and the provisions therein would be attracted.

Paragraphs 6 & 7 are quoted as under:

We have gone through the judgment of the High Court. The learned Judge did not intend to lay down that the appellant is an industry and that the principles contained in the Industrial Disputes Act, Central or the State Act stands attracted. What the learned Judge appears to have intended to lay down is that so long as the appellant has work on hand, the appellant has no power to terminate the contingent employees engaged on daily wages and that in the event the appellant needs to terminate their services the principle of last come first go should be followed and in the event of there being need for re-employment, preference be given to the displaced respondents. The observation made by the learned Judge is consistent with the well-established principles of natural justice and equity, justice and good conscience. Therefore, the learned Judge had rightly extended those principles with regard to the persons employed by the appellant on daily wages.

It is stated that by implication of the order there is need for the appellant to keep engaging the respondents even though there are no projects on hand. That apprehension also does not appear to be correct. The appellant needs to take the services of the persons according to the requirement in the projects on hand. On completion of the existing projects in which the respondents are working, if the appellant undertakes any fresh project, instead of taking the services of fresh hands at the place of the new project, the appellant needs to take the services of the existing temporary daily wage respondents. In the event of the appellant not having any project on hand, the obligation to pay daily wages to the respondents does not arise. However, the appellant shall maintain the order of seniority of the daily wage employees and shall take the services of the senior most persons in the order of seniority according to the requirement of work.

Thus, as regards Rule 3 is concerned, it does not apply where a condition of service is laid down in the appointment to the effect that services of the petitioner/appellant can be terminated at any time. In the instant case the petitioner was offered appointment on temporary basis with certain conditions laid down in the appointment order one of which is that services can be terminated without giving any notice. This is because proviso 2 to Section 3(2) lays down that in case of default, the petitioner is liable only to claim a sum equivalent to the amount of his pay plus allowances.

So far as decision rendered in the case of Ghaziabad Development Authority (supra) is concerned, that was a case where the Court was concerned with termination of service of an employee who was working in a project i.e. to say that during the period of project. In the instant case there is no project, therefore, the above said case is not applicable in the present case.

It is also to be noted that there is a separate set of Rules regarding Drivers known as "The Uttar Pradesh Government Department Drivers''s Service Rules, 1993.

Moreover, while deciding the case, the learned Single Judge has rightly taken into notice that the petitioner had not challenged the order of termination in 1986, but has approached the Court in 1996 i.e. after a lapse of 10 years only at the time when the respondents have asked the employment exchange to send certain names for the purpose of employment of drivers. In any case the petitioner cannot be reinstated in service in view of Uma Devi''s case. He can only claim compensation before the appropriate forum as regards period of notice etc. is concerned which is provided u/s 3(2) of the Act.

Learned Counsel for the appellant has fairly stated that petitioner/appellant was employed during the period 1986 to 1996 as driver at various places, therefore, he cannot claim his lien on the post in question or challenge the selection process once he has not challenged the termination order when his services were terminated in the year 1986.

In view of the above, we are of the view that there is no illegality or infirmity in the order of learned Single Judge.

The special appeal is, accordingly, dismissed. No order as to costs.