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ANAND PRAKASH TYAGI versus CHIEF AUDIT OFFICER, CO

High Court of Judicature at Allahabad

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Anand Prakash Tyagi v. Chief Audit Officer, Co-Operative Soci. & Panchayat�& & Ors. - WRIT - A No. 46155 of 2006 [2006] RD-AH 20522 (5 December 2006)

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.24

Civil Misc. Writ Petition No. 46155 of 1999

Ram Gopal Upadhaya ....petitioner

versus

State of Uttar Pradesh & others ....Respondents

*****

Hon'ble Ashok Bhushan,J

Heard counsel for the petitioner and the learned standing counsel. Counter and rejoinder affidavits have been exchanged and with the consent of the parties, the writ petition is being finally disposed of.

By this writ petition, the petitioner has prayed for quashing the order dated 20.3.1999 passed by respondent No. 1 terminating the petitioner's services with immediate effect.

Brief facts necessary for deciding the writ petition are; the petitioner was engaged as Seasonal Sahayak Wasil Vaki Navis by an order dated 3.1.1997 for a period of 89 days. The petitioner's case is that he was continued with artificial breaks, appointment orders were issued on 7.6.1997, 6.1.1998, 23.6.1998 and 4.1.1999. The petitioner's case is that the Sub Divisional Magistrate wrote a letter dated 16.3.1999 to the Additional District Magistrate(Admn.) informing that on an inspection made on that day petitioner was not found on his seat. The Sub Divisional Officer after receiving the said letter from the Tahsildar informed the Additional District Magistrate requesting for taking action. It appears that on the basis of said report, straight way the order dated 20.3.1999 was passed terminating the petitioner's services.

The counsel for the petitioner challenging the order contended that order dated 20.3.1999 although termed as an order of termination simpliciter was by way of punishment since the petitioner has been terminated on the basis of the report dated 16.3.1999 of Sub Divisional Magistrate. The writ petitioner has impleaded the Sub Divisional Magistrate as respondent No. 4 personally and has made applications of bias against respondent No. 4. The petitioner's case is that the real brother of respondent No. 4 was also a Seasonal Sahayak Wasil Vaki Navis, hence, the respondent No. 4 was interested in terminating the petitioner's services so as to pave way of regularisation of services of his brother.

The learned counsel for the petitioner submits that petitioner's work and conduct was found satisfactory and at no point of time any report was submitted regarding his work and conduct being not satisfactory. He submits that one single incident has been made, the basis of termination which is nothing but penal action and was foundation of the order. The learned counsel for the petitioner has placed reliance on the judgements of the Apex Court reported in the the judgement today 2001 (3) SC 530 A.P State Fed. of Coop. Spinning Mills Ltd. & Anr. V. P.V Swaminathan; 2000 (3) E.S.C 1625 (S.C) Chandra Prakash Shahi versus State of U.P and others; (1997) 3 UPLBEC 2079 Rajbir Singh versus State of U.P and others.

The Learned Standing Counsel refuting the submission of the counsel for the petitioner contended that petitioner was only a seasonal employee and was not even a government servant entitling any protection. He submits that their being report of Sub Divisional Officer, he has rightly been terminated. He further contends that petitioner has no right. The counsel for the respondent further submitted that petitioner has no right in view of the Apex Court judgement reported in (2006) 4 SCC 1 Secretary State of Karnataka versus Uma Devi. He has further placed reliance on the judgement of this case reported in (2006) 7 SCC 684 Surinder Prasad Tiwari versus U.P Rajya Krishi Utpadan Mandi Parishad and others.

I have considered the submissions and perused the record. The order which has been challenged in the writ petition is an order of termination of service which order has been passed by District Magistrate. The submission of the learned standing counsel that petitioner who was only seasonal employee is not a government servant cannot be accepted. The petitioner was appointed in a government establishment on a seasonal basis and was being paid salary from the State Fund. The petitioner was discharging his duties towards performance of Governmental functions. May be petitioner's right to hold the post be precarious and not permanent or substantive but it is well settled that even temporary government servants are entitled to protection under Article 311 of the Constitution of India. Panel action taken even against temporary or seasonal employees of the State Government has to conform the constituency provisions of Article 311 of the Constitution of India.

The submission of the learned standing counsel that petitioner was not a government servant cannot be accepted. The submission of the petitioner's counsel is that the order was panel in nature which was founded upon only one incident i.e a report submitted by Sub Divisional Magistrate, respondent No. 4 for absence on 16.3.1999. With regard to absence of the petitioner on 16.3.1999 petitioner was never put to any show cause or any notice was given. The learned counsel for the petitioner vehemently submitted that neither there was any other material nor any other basis for termination or for coming to conclusion that work and the conduct of the petitioner was not satisfactory. In the counter affidavit filed on behalf of the respondent no other material has even been mentioned or referred to except the report of Sub Divisional Magistrate dated 16.3.1999. The copy of the said report has been filed as annexure-7 to the writ petition. From perusal of the report it is clear that the Sub Divisional Magistrate has recommended action against the petitioner. The Sub Divisional Magistrate in the said report has never recommended that services of the petitioner be terminated since his work has been assessed to be unsatisfactory. The order of District Magistrate dated 20.3.1999 impugned in the writ petition records that Sub Divisional Officer has recommended termination of petitioner's services. The Sub Divisional Officer having not recommended for termination of the service the order of the District Magistrate suffers from an apparent error. The District Magistrate proceeds on the premise that Sub Divisional Officer recommended for termination of petitioners services after assessment of his work whereas Sub Divisional Officer had not recommended for his termination and has only recommended for drawing a proceeding for absence of the petitioner on 16..3.1999 at the time of inspection. The report of the Sub Divisional Officer annexure-7 thus cannot be held to be any recommendation for terminating the petitioner services. In this view of the matter there is an apparent error in the order of District Magistrate terminating the petitioner's services founding his decision on the alleged report of the Sub Divisional Officer whereas there is no recommendation of Sub Divisional Officer for termination of his service. Moreover, the Sub Divisional Officer has not sent any report after assessment of the work and the report was of only one stray event i.e absence of the petitioner on 16.3.1999. Thus I am satisfied the order dated 20.3.1999 passed by District Magistrate suffers from the apparent error and cannot be sustained. An interim order was passed by this Court on 1.11.1999. The petitioner claim that he has been continuing on seasonal basis by virtue of the interim order with certain breaks. The continuance of the petitioner on the basis of interim order cannot improve the petitioner's case nor can give any additional status to the petitioner on the basis of the said working. At the best the petitioner shall be restored in the same position when his services were terminated i.e a Seasonal Assistant Wasil Baki Navees . Although the petitioner has made a prayer for regularisation of his services according to his seniority but no such claim can be considered in this writ petition. Thus the prayer of the petitioner for regularisation is not being considered in this writ petition nor any direction for that purpose can be passed in this writ petition.

The learned standing counsel has placed reliance on judgement of the Apex Court i.e Secretary State of Karnataka versus Uma Devi. The Apex Court in the said judgement has laid down in paragraph 43 that temporary employee or a casual wage worker if continued for a term beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance. The preposition laid down by the Apex Court is with regard to the claim on regularisation of such adhoc or temporary workers continuing in that capacity. In the present writ petition, the petitioner has prayed for quashing the termination order dated 20.3.1999. The said observation of the Apex Court were not in context of an order of terminating service of a seasonal employee. The said judgement helps the learned standing counsel in so far as the dictum of the Apex Court is that by mere continuance in the capacity of adhoc or temporary workers are not entitled for regularisation in service. The another judgement relied by learned standing counsel in Surinder Prasad Tiwari versus U.P Rajya Krishi Utpadan Mandi Parishad was also a case for regularisation in public employment of daily wagers, ad hoc employee, probationer, temporary or contractual employee. In view of the constitution Bench judgement of Secretary, State of Karnataka versus Umadevi, the adhoc daily wager or temporary employee are not entitled for regularisation in public employment. However, the above two judgements in so far as termination of service of the petitioner is concerned has no application.

In view of the foregoing discussion, the order dated 20.3.1999 is set aside. The writ petition is allowed to the extent indicated above.

Date 5.12.2006

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