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Rajendra Prasad Dubey v. State of U.P. & Ors. - WRIT - C No. 18124 of 2004 [2005] RD-AH 1760 (26 July 2005)


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Rajendra Prasad Dubey       -------------    Petitioner              


State of U.P. & Ors.        -------------  Respondents


Hon'ble Dr. B.S. Chauhan, J.

Hon'ble  Dilip Gupta, J.

This writ petition has been filed challenging the judgment and order dated 30.1.2004, by which the U.P. State Public Services Tribunal (hereinafter called the Tribunal) rejected the claim of the petitioner against the termination order dated 28.11.1991.

The facts and circumstances giving rise to this case are that the petitioner was appointed as a Clerk for a period of 3 months in Nagar Palika, Mirzapur vide order dated 14.8.1989. Subsequently, he was appointed on daily wages on 3.3.1990. His services were terminated vide order dated 28.11.1991 as he was no more required. Being aggrieved, the petitioner challenged the said order of termination dated 28.11.1991 by filing Writ Petition No. 7189 of 1992. The said writ petition was dismissed by the learned Single Judge of this Court vide judgment and order dated 6.8.1999. Being aggrieved, the petitioner filed the special appeal which was also dismissed by the Division Bench of this Court vide order dated 15.9.1999. However as certain observations had been made therein that petitioner ought to have approached the Tribunal, the petitioner  filed a claim petition before the Tribunal on 23.10.2000, and the same was dismissed by the Tribunal vide judgment and order dated 30.1.2004 observing that as the matter had already been examined by this Court, it was not possible for the Tribunal to sit in appeal against the said judgment. Hence this petition.

Dr. V.N. Tripathi, learned counsel for the petitioner has submitted that once the Division Bench had made an observation that the petitioner could approach the Tribunal, it was not proper for the Tribunal to reject the claim on the ground that the matter had already been adjudicated upon by this Court. More so, as the order of termination was illegal, it ought to have quashed it. Therefore, the petition deserves to be allowed.

On the contrary, learned Standing Counsel appearing for respondents has submitted that the petitioner had been appointed without following any procedure prescribed by law and without advertising the vacancy. He simply made an application to the President of the Nagar Palika, who issued him the appointment letter. Such appointment was void as the appointment could not have been made in such an arbitrary manner on the same date the petitioner had filed an application, and that too before the authority having no competence to appoint, as the appointing authority in Nagar Palika is the Executive Officer and not the President. Once the matter has been adjudicated upon by this Court, the Tribunal has rightly held that it could not examine the issue further. The observations made by the Division Bench in its order dated 15.9.1999 seem to have been made inadvertently, or there was some typographical error as the intention of the Court may have been that the petitioner ought to have approached the Tribunal before filing the writ petition. Hence the petition is liable to be rejected.

We have considered the rival submissions made by the learned counsel for the parties and perused the record.

Admittedly, petitioner had been appointed without advertising the vacancy and without following any procedure prescribed by law. Petitioner submitted an application to the President and on the same date he was issued the appointment letter. The President of the Nagar Palika is not the appointing authority, as the law provides that every appointment in Nagar Palika shall be made by the Executive Officer. More so, the petitioner had been working on daily wages and his services had been terminated observing that his services were no more required. In such a fact-situation as the appointment of the petitioner was invalid and he had been appointed violating the mandate of Articles 14 and 16 of the Constitution infringing the fundamental rights of all other eligible candidates to be considered for the said post, he is not entitled for any equitable relief. Petitioner himself has annexed the copy of the order dated 11.12.1991 (Ann. 10), by which the services of 36 such employees have been terminated. The termination order has been passed by the Executive Officer who is, in fact, the appointing authority. All such employees had been working on temporary basis. This Court has already adjudicated upon the matter and dismissed the writ petition vide order dated 6.8.1999. For the reasons best known to the petitioner, he did not file the copy of the judgment and order dated 6.8.1999, though he has filed the copy of the order passed by the learned Single Judge calling for counter and rejoinder affidavits. The order dated 15.9.1999, passed by the Division Bench in Special Appeal reads as under:

"After going through the order under challenge passed by learned Single Judge dated 6.8.1999 we find no illegality and infirmity. In our view the proper remedy for the appellant would be to move before the U.P. Public Services Tribunal. We are not inclined to interfere with the same."

It is evident from the earlier part of the judgment that the Division Bench had affirmed the judgment and order of the learned Single Judge as no illegality or infirmity was found therein. The subsequent part of the order seems to have been incorporated inadvertently or appears to be a typographical error as the intention of the Court could be that before approaching the writ Court, the proper remedy for the appellant was to move  the Tribunal. The learned Tribunal has rightly rejected the case as interference by the Tribunal or by this Court would amount to sitting in appeal against the said judgment and order which is not permissible, and the petitioner cannot be permitted to take the benefit of such a technical/typographical mistake. The petitioner being a daily wager had no right to the post. His services have rightly been terminated. Once the services of large number of such employees have been terminated, the petitioner's grievance cannot be considered in isolation merely on the ground that one such employee appointed subsequent to the petitioner, namely, Raj Ram Mishra, continued in service at that time.

Learned counsel for the petitioner has taken several grounds relating to the provisions of the U.P. Industrial Disputes Act, 1947. We fail to understand if this was the fact-situation, why the petitioner had approached this Court directly without approaching the Labour Court.

Petition is totally misconceived and accordingly dismissed.




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