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Judgment
Hon'Ble Anish Kumar Gupta, J.
Heard Sri M.D. Singh Shekhar, learned Senior Counsel assisted by Sri Vaibhav Goswami, Advocate holding brief of Sri Ram Dayal Tiwari, learned counsel for the petitioner and Sri Dileep Kumar Kesarwani, learned Additional Chief Standing Counsel for the State.
The instant writ petition has been filed by the petitioner seeks quashing of the order dated 29.09.1995, whereby the services of the petitioner who was working as ad- hoc/temporary Junior Clerk at Deaf and Dumb Girl School, Etawah were terminated, relying upon the U.P. Temporary Government Servant (Termination of Service) Rules, 1975, stating therein that the services of the petitioner are no more required and after the end of one month, his services will be deemed to have been terminated.
After filing of the instant writ petition, vide order dated 01.11.1995, an interim order was passed in favor of the petitioner directing the respondents to make payment of arrears of salary as well as salary month-by-month as and when it falls due to the petitioner and in said order, interestingly, it was also observed that instant petition shall be heard finally and disposed of within six months and the parties are at liberty to make mention for early hearing of the petition and despite the aforesaid observation, the instant petition could not be decided for last 30 years. Pursuant to the aforesaid interim order, the petitioner continued in service. At the time of filing of instant petition, as per the affidavit filed supporting the writ petition, the age of the petitioner was 28 years. Thus, as of now, the petitioner would be about 59 years of age.
The briefly stated facts of the case are that as per the appointment letter dated 08.05.1991, the petitioner was appointed on the post of Junior Clerk temporarily on the pay scale of 950-20-1150-25-1500, temporarily in Government Deaf and Dumb Girls School, in Etawah. From the date of the joining, it was made clear in the said appointment letter that his appointment is temporary, which can be terminated at any time without prior intimation. The claim of the petitioner is that the aforesaid appointment was made after following the due procedure for selection by the Committee appointed for the said purpose. After verification of the documents, the petitioner had joined on 08.07.1991 on the aforesaid post of Junior Clerk. Later, vide order dated 29.09.1995, the services of petitioner were terminated after giving one month's notice under the provisions of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975. Being aggrieved, the instant petition has been filed by the petitioner.
Sri M.D. Shekhar, learned Senior Counsel appearing for the petitioner, submits that since the appointment for the petitioner was against the permanent post, though it was ad hoc / temporary, it cannot be said to be temporary service within the meaning of Rule 2 of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975, which provides that temporary service means: (i) officiating or substantive service on a temporary post; or (ii) officiating service on a permanent post under the U.P. Government. Thus, learned Senior Counsel for the petitioner submits that since the appointment of the petitioner was on a permanent post and it was an appointment in the regular nature and not in the officiating capacity, therefore, the aforesaid rules of 1975 Rule will not apply in the instant case. Therefore, termination of service of the petitioner, relying upon the aforesaid Rules after giving one month’s notice is not sustainable.
It is further submitted by learned Senior Counsel for the petitioner that no opportunity whatsoever has ever been given to the petitioner before passing the impugned termination order, therefore, the said termination order is in violation of Article 311 (2) of the Constitution of India. Thus, he submits that since termination of the has been done relying upon the aforesaid Rules is not sustainable and the impugned order is liable to be quashed.
Learned Senior Counsel for the petitioner has relied upon the judgment of the Apex Court in Dr. Mrs. Sumati P. Shere vs. Union of India : AIR 1989 SC 1431 and submits that at least an opportunity of hearing is required before terminating the service.
Per contra, learned Additional Chief Standing Counsel for the State submits that the institution in question/school in question was established in the year 1990 and in the year 1991, to run the institute, ad hoc / temporary appointments were made for the purpose till the regular appointments are made in the said institute. In the appointment letter issued to the petitioner, it was categorically mentioned that his services are ad hoc / temporary and can be terminated at any point of time without assigning any reason and without notice. Therefore, the ad hoc appointments so made are only till regular appointments are made on the said post after following the proper selection process as per relevant rules. Till then, the status of such ad hoc appointments would be officiating on the permanent post. Therefore, the services of the petitioner are fully covered under the 1975 Rules and vide impugned order dated 29.09.1995 the services of the petitioner have been terminated relying upon the aforesaid Rules. At no point of time, the services of the petitioner have ever been confirmed and till the confirmation of service, the services of an ad hoc / temporary employee remains in the temporary service. Therefore, there is no illegality in the termination order so passed by the appointing authority without assigning any reason.
The reliance placed by learned Senior Counsel for the petitioner on Article 311 of the Constitution of India is relevant only when some punitive orders are passed by the appointing authority while dismissing the services. From the perusal of the impugned termination order, the same cannot be termed as punitive in nature. Therefore, there is no illegality in the impugned termination order. Accordingly, learned Additional Chief Standing Counsel for the State seeks dismissal of the instant writ petition.
Having heard the rival submission so made by the parties, this Court has carefully gone through the records of the case. The facts of the case are briefly stated as has already been noted hereinabove. It is undisputed in the instant case that the appointment letter was issued to the petitioner on 08.05.1991, in which it was categorically mentioned that the petitioner's appointment is ad hoc/ temporary, which can be terminated without any prior intimation. There is no order of confirmation of the petitioner in the said services till date or till the impugned order was passed. Therefore, the services of the petitioner remained ad hoc / temporary till the impugned termination order was passed.
Rule 2 of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975 reads as under:
"Rule 2. Definition.-
In these rules "temporary service" means officiating or substantive service on a temporary post, or officiating service on a permanent post under the Uttar Pradesh Government."
In the aforesaid Rule, it is categorically provided that temporary service means: (i) the officiating or substantive service on a temporary post; or (ii) the officiating service on a permanent post. There is no dispute in the instant case, that post of 'Junior Clerk' in which the petitioner was appointed was a permanent post. Thus, it is to be determined whether the services of the petitioner were in the nature of officiating service or the permanent service.
From the appointment letter itself it is apparent that his services were ad hoc / temporary. It is relevant to take note of the fact that the institute i.e., the Government Deaf and Dumb Girls School, Etawah, was established in the year 1990 and just to start this institute, some temporary / ad hoc appointments were made till the regular appointments were made on the said posts. Therefore, ad hoc appointments so made cannot be termed as the permanent appointment by any stretch of imagination. The ad hoc appointment remains to be a temporary arrangement till the regular appointments are made. Therefore, such appointments can very well be covered within the definition of officiating service on a permanent post. Thus, the same will remain temporary service and cannot be held to be a substantive service by any stretch of imagination. Thus, in the considered opinion of this Court, the appointment of the petitioner continued to be officiating service on a permanent post from the date of his appointment till the date of his termination on 29.09.1995.
In Ram Sudhar Prasad vs. State of UP and others : 2012:AHC:92611, relying upon Section 4 of the Uttar Pradesh State Government Servants Confirmation Rules, 1991, the Court has held that till the confirmation orders are passed, the nature of appointment of an ad hoc / temporary appointee remains to be that of a temporary appointment. Hence, the U.P. Temporary Government Servants (Termination of Service) Rules, 1975 could be fully applicable on such appointments and the services would be terminated relying upon the provisions of 1975 Rules.
In judgement and order dated 01.09.2004 passed in Siya Ram vs. State of U.P. and Other (Civil Misc. Writ Petition (now Writ A) No. 34983 of 2911), the Coordinate Bench of this Court has observed as under:
"(9). A temporary employee has no right to hold the post and his service is liable to be terminated without assigning any reason either under the terms of the contract providing for such termination or under the relevant statutory rules regulating the terms and conditions of temporary servants. Similarly, in Triveni Shanker Saxena Vs. State of U.P. & ors., AIR 1992 SC 496; Commissioner of Food and Supply Vs. Prakash Chandra Saxena, 1994(5) SCC 177; Ram Chandra Tripathi Vs. U.P. Public Service Tribunal and others, 1994(2) JT 84; Madhya Pradesh Hasth Shilp Vikas Nigam Ltd. Vs. Devendra Kumar Jain & anr., 1995(1) SCC 638; and Kaushal Kishore Shukla (supra), the Supreme Court has categorically held that incumbent to a post who has been given appointment on temporary basis, terminable without notice, has no right to hold the post and he is not entitled for any opportunity of hearing before his service is dispensed with as his termination does not amount to forfeiture of any legal right. "
Rule 4 of the Uttar Pradesh State Government Servants Confirmation Rules, 1991 reads as under:
"Rule - 4. Confirmation where necessary.
(1)Confirmation of a Government servant shall be made only on the post on which he is substantively appointed
(i)through direct recruitment or,
(ii)by promotion, if direct recruitment is one of the sources of recruitment or, (iii) by promotion if the post belongs to a different Service.
(2)Such confirmation shall be made --
(i)against a post, whether permanent or temporary, on which any other person does not hold a lien;
(ii)subject to the fulfilment of the conditions of confirmation laid down in the relevant service rules, or executive instructions issued by Government, as the case may be ;
(iii)formal order shall be necessary to be issued by the appointing authority with regard to confirmation.
Explanation.- Notwithstanding the fact that a Government servant is confirmed anywhere else, if he is directly recruited on any post, or is promoted to a post, where direct recruitment is one of the sources of recruitment, he will have to be confirmed thereon."
Thus, for all the practical purposes, since no confirmation order was passed in the instant case till the impugned termination order was passed, therefore, the services of the petitioner continued to be a temporary service. In such view of the matter, this Court do not find any illegality in the impugned termination order dated 29.09.1995. Otherwise also, from the perusal of the impugned termination order, it is apparent that the said order cannot be termed as a punitive order by any stretch of imagination and the said order is a termination simpliciter in terms of 1975 Rules. Therefore, the provisions of Article 311(2) of the Constitution of India would not apply in the instant case and no opportunity of hearing whatsoever is required to be given while passing the said order. In such view of the matter, this Court do not find any illegality in the impugned termination order dated 29.09.1995.
Accordingly, the instant writ petition lacks merit and accordingly dismissed. The petitioner shall be deemed to have been terminated w.e.f. 29.09.1995. However, looking at the fact that the petitioner herein has continued in service pursuant to the interim orders so passed in the instant petition on 01.11.1995. In such with the matter, though the termination has been upheld from 29.09.1995, the respondents are restrained from recovering any amount which was paid to the petitioner pursuant to the interim order.