Over 2 lakh Indian cases. Search powered by Google!

Case Details

ASHOK KUMAR versus STATE OF U.P.& OTHERS

High Court of Judicature at Allahabad

Case Law Search

Indian Supreme Court Cases / Judgements / Legislation

Judgement


Ashok Kumar v. State Of U.P.& Others - WRIT - A No. 31679 of 1990 [2006] RD-AH 7920 (19 April 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                      Court No. 35

Civil Misc. Writ Petition No.  31679 of 1990

Ashok Kumar

Versus

                                        State of  U.P.  and others

Hon.R.K.Agrawal.J.

Hon.Sanjay Misra.J.

The instant petition has been filed seeking the relief in the nature of certiorari for  quashing the judgment and order 28.8.1990 passed by the U.P.State Public Service Tribunal-I Lucknow as also the orders dated 28.9.1984 and 30.10.1984.

The case set up by the petitioner is that in an examination held in the year 1983 and subsequent interview  by the selection committee, the petitioner was placed at serial no.1 of the select list and was given appointment on the post of stenographer by the order dated 17.12.1983 . The respondent no. 3 made a representation  before the Commissioner Varanasi Division Varanasi against the appointment of the petitioner on the ground that the respondent no.3 having already been appointed in selection of 1981, his services ought to have been regularized on the post in question. Upon the said representation Commissioner Varanasi Division Varanasi directed the District Magistrate Varanasi to consider his order appointing the petitioner. The District Magistrate Varanasi has thereafter passed the order dated 28.9.1984 whereby he has terminated the services of the petitioner. It is contended by the learned counsel for the petitioner that his appointment was on the basis of being successful in a competitive examination and selection by the Selection Committee against the clear and permanent vacancy  wherein the respondent no.3 had also appeared and was placed lower in the merit list. It is contended that the impugned order has been passed by the respondent no.2 without affording any opportunity to the petitioner  and without one month pay or notice in lieu thereof.

Counter affidavit and rejoinder affidavits have been exchanged between the parties.

Learned standing counsel submits that the respondent no.3 was selected and given temporary appointment in the selection held in the y ear 1981 and therefore, he was entitled to be regularized under the provisions of U.P. Regularization of Adhoc Appointment ( On posts Outside Purview of the Public Service Commission) Rules 1979 and as amended in 19 84. It is his contention that by virtue of the amended rules, the respondent no.3 was entitled to be regularized since his appointment was prior to the cut of date being 1.5.1983.  It is contended that appointment of the petitioner on the said post therefore, could not have been made and the selection so held was never required. When the aforesaid facts came to the knowledge  of the authorities, they have rightly dispensed with the services of the petitioner. It is contended that in view of the terms and conditions of the appointment letter, services of the petitioner being purely temporary could be terminated without notice at any time without assigning any reasons and therefore, there is no error in the impugned order passed by the respondent no.2 or in the judgment of the tribunal.

Learned counsel for the respondent no.3 has submitted that on information received by him, the respondent no.3 namely Mohan Prasad had since expired and therefore, he has no instruction in the matter.

Having considered the submissions of the learned counsel for the parties, it is seen that in so far as the regularization of the respondent no.3 is concerned, it could have been done by the virtue of the amended Rule of  1984 where in the cut of date had been fixed as 1.5.1983 and  his  initial appointment was  of 27.4.1981,  However, the selection whereupon the petitioner was given appointment was held prior to the coming into force of the amended Rule of 1984 . Therefore, on the date of appointment of the petitioner the respondent no.3 could not have been regularized under the original unamended rules of 1979. It is on record that the services of the respondent no. 3 was thereafter terminated on 11.5.1982 and upon his representation he was permitted to work as Typist in the office of the Collector Varanasi. It is his case that after retirement of one Sri  Muzibur Rahman, the respondent no. 3 was given appointment on 10.8.1982 in the Court of Sub-divisional Magistrate (South). The respondent no.3 thereafter appeared in selection held in the year 1983  along with petitioner, and his name was placed at serial no. 3 of the merit list. The appointment of the petitioner was on the post advertised prior to the amendment of 1984 and on which date the respondent no.3 could not have been regularized.  It is stated in para 6 of the rejoinder affidavit dated 24.1.1997 that one post fell vacant due to the retirement of Shri Muzibur Rahman and selection  was held on 9.12.1983 wherein the petitioner was selected . The appointment of the respondent no.3 was prior to the retirement of Sri Muzibur Rahman and therefore, the examination and selection  of 1981 did not relate to the vacancy caused due to such retirement. This fact is admitted by the Respondent no. 3 in paragraph  4 and  5 of his counter affidavit wherein it has categorically been stated that the respondent no.3 was appointed on 10.9.1981 and his services were terminated on 11.5.1982 and thereafter on retirement of Sri Muzibur Rahman  he was again appointed on 10.8.1982 . Consequently the selection held in 1981 did not relate to the vacancy which occurred due to retirement of Sri Muzibur Rahman . The 1983 selection related to such vacancy . The finding of the tribunal to the contrary is therefore, illegal and cannot be upheld.

The Tribunal while considering the grievance of the petitioner has recorded that since  the appointment of the petitioner was purely tremporary therefore, in view of the conditions in his appointment letter, he could be terminated at any time without any notice, consequently the tribunal has concluded that termination of the services of the petitioner under the provisions of U.P  Temporary Government Servants  (Termination of Services ) Rules 1975 did not suffer from any error and has proceeded to  dismiss the claim petition of the petitioner. A perusal of the aforesaid rules of 1975 clearly provide for one month notice or pay in lieu thereof  and admittedly in the present case neither the petitioner was given one month's pay nor notice in lieu thereof .  The order of the Collector Varanasi has been passed under the provisions of 1975 Rules, therefore, compliance of the said provision of  the Rule of 1975  was mandatory and its non-compliance would be fatal. Admittedly no pay or notice in lieu thereof was given to the petitioner prior to passing of the impugned order dated 28.9.1984 . The learned Tribunal has failed to consider this aspect of the matter and as such has illegally concluded that the termination of the petitioner was in accordance with the Rules of 1975.

 For the aforesaid reasons, the judgment and order of the Tribunal and also the order of termination dated 28.9.1984 and 30.10.1984  passed by the respondent no.2 are set aside . However, since the respondent no.3 has died in active service  the benefits available to the legal heirs and representative of respondent no. 3 in accordance with law  shall not be adversely affected in any way under this order.

In the result the writ petition stands allowed. No order is passed as to costs.

Dt. 19/4/2006

Naim

                                                      Court No. 35

Civil Misc. Writ Petition No.  31679 of 1990

Ashok Kumar

Versus

                                        State of  U.P.  and others

Hon.R.K.Agrawal.J.

Hon.Sanjay Misra.J.

The instant petition has been filed seeking the relief in the nature of certiorari for  quashing the judgment and order 28.8.1990 passed by the U.P.State Public Service Tribunal-I Lucknow as also the orders dated 28.9.1984 and 30.10.1984.

The case set up by the petitioner is that in an examination held in the year 1983 and subsequent interview  by the selection committee, the petitioner was placed at serial no.1 of the select list and was given appointment on the post of stenographer by the order dated 17.12.1983 . The respondent no. 3 made a representation  before the Commissioner Varanasi Division Varanasi against the appointment of the petitioner on the ground that the respondent no.3 having already been appointed in selection of 1981, his services ought to have been regularized on the post in question. Upon the said representation Commissioner Varanasi Division Varanasi directed the District Magistrate Varanasi to consider his order appointing the petitioner. The District Magistrate Varanasi has thereafter passed the order dated 28.9.1984 whereby he has terminated the services of the petitioner. It is contended by the learned counsel for the petitioner that his appointment was on the basis of being successful in a competitive examination and selection by the Selection Committee against the clear and permanent vacancy  wherein the respondent no.3 had also appeared and was placed lower in the merit list. It is contended that the impugned order has been passed by the respondent no.2 without affording any opportunity to the petitioner  and without one month pay or notice in lieu thereof.

Counter affidavit and rejoinder affidavits have been exchanged between the parties.

Learned standing counsel submits that the respondent no.3 was selected and given temporary appointment in the selection held in the y ear 1981 and therefore, he was entitled to be regularized under the provisions of U.P. Regularization of Adhoc Appointment ( On posts Outside Purview of the Public Service Commission) Rules 1979 and as amended in 19 84. It is his contention that by virtue of the amended rules, the respondent no.3 was entitled to be regularized since his appointment was prior to the cut of date being 1.5.1983.  It is contended that appointment of the petitioner on the said post therefore, could not have been made and the selection so held was never required. When the aforesaid facts came to the knowledge  of the authorities, they have rightly dispensed with the services of the petitioner. It is contended that in view of the terms and conditions of the appointment letter, services of the petitioner being purely temporary could be terminated without notice at any time without assigning any reasons and therefore, there is no error in the impugned order passed by the respondent no.2 or in the judgment of the tribunal.

Learned counsel for the respondent no.3 has submitted that on information received by him, the respondent no.3 namely Mohan Prasad had since expired and therefore, he has no instruction in the matter.

Having considered the submissions of the learned counsel for the parties, it is seen that in so far as the regularization of the respondent no.3 is concerned, it could have been done by the virtue of the amended Rule of  1984 where in the cut of date had been fixed as 1.5.1983 and  his  initial appointment was  of 27.4.1981,  However, the selection whereupon the petitioner was given appointment was held prior to the coming into force of the amended Rule of 1984 . Therefore, on the date of appointment of the petitioner the respondent no.3 could not have been regularized under the original unamended rules of 1979. It is on record that the services of the respondent no. 3 was thereafter terminated on 11.5.1982 and upon his representation he was permitted to work as Typist in the office of the Collector Varanasi. It is his case that after retirement of one Sri  Muzibur Rahman, the respondent no. 3 was given appointment on 10.8.1982 in the Court of Sub-divisional Magistrate (South). The respondent no.3 thereafter appeared in selection held in the year 1983  along with petitioner, and his name was placed at serial no. 3 of the merit list. The appointment of the petitioner was on the post advertised prior to the amendment of 1984 and on which date the respondent no.3 could not have been regularized.  It is stated in para 6 of the rejoinder affidavit dated 24.1.1997 that one post fell vacant due to the retirement of Shri Muzibur Rahman and selection  was held on 9.12.1983 wherein the petitioner was selected . The appointment of the respondent no.3 was prior to the retirement of Sri Muzibur Rahman and therefore, the examination and selection  of 1981 did not relate to the vacancy caused due to such retirement. This fact is admitted by the Respondent no. 3 in paragraph  4 and  5 of his counter affidavit wherein it has categorically been stated that the respondent no.3 was appointed on 10.9.1981 and his services were terminated on 11.5.1982 and thereafter on retirement of Sri Muzibur Rahman  he was again appointed on 10.8.1982 . Consequently the selection held in 1981 did not relate to the vacancy which occurred due to retirement of Sri Muzibur Rahman . The 1983 selection related to such vacancy . The finding of the tribunal to the contrary is therefore, illegal and cannot be upheld.

The Tribunal while considering the grievance of the petitioner has recorded that since  the appointment of the petitioner was purely tremporary therefore, in view of the conditions in his appointment letter, he could be terminated at any time without any notice, consequently the tribunal has concluded that termination of the services of the petitioner under the provisions of U.P  Temporary Government Servants  (Termination of Services ) Rules 1975 did not suffer from any error and has proceeded to  dismiss the claim petition of the petitioner. A perusal of the aforesaid rules of 1975 clearly provide for one month notice or pay in lieu thereof  and admittedly in the present case neither the petitioner was given one month's pay nor notice in lieu thereof .  The order of the Collector Varanasi has been passed under the provisions of 1975 Rules, therefore, compliance of the said provision of  the Rule of 1975  was mandatory and its non-compliance would be fatal. Admittedly no pay or notice in lieu thereof was given to the petitioner prior to passing of the impugned order dated 28.9.1984 . The learned Tribunal has failed to consider this aspect of the matter and as such has illegally concluded that the termination of the petitioner was in accordance with the Rules of 1975.

 For the aforesaid reasons, the judgment and order of the Tribunal and also the order of termination dated 28.9.1984 and 30.10.1984  passed by the respondent no.2 are set aside . However, since the respondent no.3 has died in active service  the benefits available to the legal heirs and representative of respondent no. 3 in accordance with law  shall not be adversely affected in any way under this order.

In the result the writ petition stands allowed. No order is passed as to costs.

Dt. 19/4/2006

Naim


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

Advertisement

dwi Attorney | dui attorney | dwi | dui | austin attorney | san diego attorney | houston attorney | california attorney | washington attorney | minnesota attorney | dallas attorney | alaska attorney | los angeles attorney | dwi | dui | colorado attorney | new york attorney | new jersey attorney | san francisco attorney | seattle attorney | florida attorney | attorney | london lawyer | lawyer michigan | law firm |

Tip:
Double Click on any word for its dictionary meaning or to get reference material on it.