State of U.P. through Secretary, Education U.P., Lucknow and others vs Durvasa Kumar Tewari

Pradeep Kant and Ran Vijai Singh, JJ.—This appeal has been filed by State of U.P. challenging the order passed by learned Single Judge dated 28.10.1999 by means of which the respondent''s writ petition challenging the order of repatriation dated 3rd August, 1988 has been set aside and direction was issued to allow the respondent to continue as Supervisor in the Adult Education Department.

It appears that the respondent applied for being selected on the post of Supervisor in the Adult Education Department when he was working temporarily in the Public Works Department. He was selected as such and joined the Adult Education Department on 9th December, 1983 and in pursuance of the selection he joined department of Adult Education but when it was detected that the respondent had not disclosed before the Adult Education Department that he was already in service of Public Works Department, at the time of his selection an explanation was called for on 16.6.1986 requiring him to explain as to why he has not disclosed the fact that he was working in the Public Works Department. It is said that the first notice was not replied to, but the respondent submitted his reply to the second notice, thereafter the order impugned has been passed repatriating the respondent to his parent department of Public Works. It is also an admitted fact that the petitioner after joining the Adult Education Department submitted his resignation in the Public Works Department which was duly accepted by the Superintending Engineer on 6.10.1986.

The respondent assailed the order of repatriation mainly on the ground that his resignation was accepted by the Public Works Department on 6th October, 1986. His lien ceased in the said department from that date and, therefore, no order of repatriation could have been passed.

Learned Single Judge accepted the plea raised by the respondent and allowed the writ petition vide impugned order dated 28.10.1999 and directed that respondent be reinstated in the service forthwith on the post of Supervisor and shall be paid his salary etc.

Learned Counsel for the respondent, also submitted, that, neither the respondent is being allowed, join in the PWD nor he is being continued in the Adult Education Department, despite the order passed by the learned Single Judge.

Smt. Sangeeta Chandra Counsel for the State assailed the order passed by learned Single Judge saying that since the respondent''s resignation had already been accepted, he cannot be allowed to join in PWD. She also submitted that respondent had gone for selection in the Adult Education Department without giving any information, therefore, he was rightly repatriated. The argument is selfcontradictory, either the respondent is to be treated in service in Public Works Department so as to upheld the order of repatriation and if not when his resignation has been accepted, he could not have been repatriated in the Public Works Department.

The irregularity committed by the respondent in not informing the department either about his existing service though call for an explanation from him but the fact remains that he was a temporary Government servant and for joining any other department it was not necessary for him to resign from service. A temporary Government servant for having better avenue can apply for selection and appointment in any other department of the State Government for which resignation is not required to be given.

In the against case the respondent had applied in pursuance of an advertisement for selection in the Adult Education Department on the post of Supervisor. He being a temporary Government servant if had not given this information, it might have been a cause for taking some action by the department concerned but so far as his selection was concerned in the given circumstances of the case wherein he was allowed to continue right from 16th December, 1983 up to 3rd August, 1988 we do not find any justification fro taking such a rigid stand which has the effect of ousting him from service. The respondent has submitted his resignation though after almost three years but it was accepted by the Superintending Engineer which reveals that he had full knowledge of the aforesaid fact at least on 6th October, 1986 but even after the acceptance of resignation, the respondent was allowed to continue as Supervisor in the Adult Education Department for a further period of approximate two years and thereafter he was repatriated.

We do not find any irregularity in the order passed by learned Single Judge when he says that if resignation of respondent has been accepted in the Public Works Department, no order of repatriation could have been passed. The authorities could have taken any action as per rules if at all it constituted misconduct and permitted any punishment for the aforesaid reason. The repatriation under the circumstances was not the appropriate order which could have been passed.

We have been informed by learned Counsel for the appellant as well as Counsel for the respondent that the Adult Education Department of the U.P. is no more in existence as it has been virtually abolished but it is also a fact admitted to both the parties that since employees working in the department have been absorbed and some are still being absorbed in terms of a Government Order dated 27th October, 1999 and which has been produced before us.

We, therefore, modify the order passed by learned Single Judge though upholding the order passed by him for giving full effect to the order considering the plea that the post of Supervisors was abolished in the year 1992 itself and that the department of Adult Education has also been abolished sometimes in year 1999, the appellant shall give the benefit of absorption in service to the respondent also in terms of the relevant Government Orders at the earliest say within a maximum period of two months from the date a certified copy of the order is served with all other emoluments and service benefits as might have been given to other such employees on absorption keeping in mind that the respondent''s writ petition has been allowed with consequential benefits.

With the above observations the special appeal is disposed of finally. Appeal disposed of accordingly.