Nagar Panchayat and Another vs Harihar Kripalu Tripathi and Others Harihar Kripalu Vs State of U.P. and Others

Heard Shri H.R. Mishra, Senior Advocate assisted by Shri Sant Ram Sharma for the appellants. Shri S.F.A. Naqvi appears for the petitioner-respondent No. 1. Learned Standing Counsel appears for respondent Nos. 2 and 3.

The Nagar Panchayat, Oran, District Banda through its President, and the Executive Officer, Nagar Panchayat Oran, District Banda, are aggrieved by the Judgment of learned Single Judge dated 8.12.2005, by which the writ petition filed by the petitioner-respondent Shri Harihar Kripalu Tripathi was allowed and the order dated 6.1.2004 passed by the State Government to terminate the services of petitioner-respondent appointed illegally and the consequential order dated 24.12.2004 passed by the Chairman of the Nagar Panchayat, were quashed.

Learned Single Judge has in his short Judgment found that the petitioner was initially appointed on 31.1.1987 as Clerk on daily wage basis. He continued thereafter in one or the other capacity, and was regularized on temporary basis by the order dated 5.12.1995. He was confirmed on the post of Clerk on 2.1.1998 in the pay scale of Rs. 950-1500. His services were thereafter terminated on the ground that his appointment was illegal. The Court held that since the petitioner was a confirmed employee, his services could not have been terminated without holding disciplinary enquiry.

Shri H.R. Mishra, learned Counsel appearing for appellants submits that the petitioner-respondent''s appointment was litigious in nature. He was initially appointed on daily wages on 30.1.1987 upto 30.4.1987. The State Government rejected the proposal of the Chairman dated 1.6.1987 recommending his appointment on 3.5.1989. He was removed by the District Magistrate on 19.5.1989. Another recommendation dated 19.6.1989 made by the Chairman was turned down by the State Government on 3.7.1984. He was again removed by the District Magistrate on 17.7.1989. The petitioner obtained an interim order on 3.8.1989 in Writ Petition No. 14850 of 1989. During the pendency of the writ petition, by Government Order dated 3.2.1992 the State Government decided to regularise the services of Class III and Class IV employees working in local bodies on daily wages. In Writ Petition No. 5653 of 1994 an interim mandamus was issued to either regularize the petitioner-respondent or show cause. A counter affidavit was filed stating that he was not qualified and eligible giving the history of his daily wage appointment. The Chairman, however, without waiting for the orders of the Court on his own, regularized him temporarily on 5.12.1995 and also confirmed on 2.1.1998.

It is not disputed that in certain exigencies the Executive Officer or the Chairman can make appointments u/s 74 of the UP Municipalities Act, 1916. The Chairman made the appointment in pursuance to the orders passed by the State Government to regularize the daily waged employees. It is alleged that at that time the question of petitioner''s eligibility for appointment, which was one of the conditions of regularisation, was not looked into by the then Chairman. The eligibility for appointment on the post, was one of the conditions on which the petitioner''s services could be regularized under the Government Order dated 3.2.1992. Admittedly the petitioner has taken education only upto High School. The qualification of appointment as a Clerk is seriously in dispute. It is alleged by Shri H.R. Mishra that the minimum qualification for appointment as Clerk was Intermediate, whereas Shri S.F.A. Naqvi would submit that the relevant papers have not been placed before the Court and that the qualification for appointment as Clerk was High School.

Although the petitioner''s appointment was initially litigious in nature as he was continuing inspite of the orders of termination of service as daily wage employee and continued in terms of the interim order passed by this Court, we do not find any error of the law in the judgment of learned Single Judge in holding that the petitioner''s services, after he was regularized on 5.12.1995 and thereafter confirmed on 2.1.1998, could not be terminated without giving him show cause notice and holding departmental enquiry.

The petitioner was appointed on daily wages. He was allowed to continue by the Chairman of the Town Area Committee from time to time. He was thereafter regularized and confirmed by the Chairman of the Nagar Panchayat, who had the powers to appoint a Class III employee. The petitioner, therefore, has a right to be given a hearing, before his services were terminated by the Nagar Panchayat.

Learned Single Judge did not commit any error in holding that the petitioner was entitled to an opportunity of hearing to serve the principles of natural justice before his services were terminated.

The Special Appeal is dismissed. It will be open to the Nagar Panchayat Oran, District Banda to hold a disciplinary enquiry against the petitioner in accordance with law.

With this judgment, the reliefs claimed in Writ Petition No. 35663 of 1994 have become infructuous. The writ petition is accordingly dismissed as infructuous.