Ram Sudhar Prasad vs State Of U.P. And Others
2012 Latest Caselaw 3182 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 18
 

 
Case :- WRIT - A No. - 3850 of 2003
 

 
Petitioner :- Ram Sudhar Prasad
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- Jitendra Narain Rai
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Rajes Kumar,J.

Heard Sri Jitendra Narain Rai, learned counsel for the petitioner and Sri Pankaj Rai, learned Additional Chief Standing Counsel.

By means of the present writ petition, the petitioner is challenging the order dated 19.08.2000 passed by District Magistrate, by which the petitioner has been dismissed  from service and appeal  against the said order has been dismissed.  The petitioner's service has been dismissed on the ground that his service is no longer required, on payment of one month's salary under U.P. Temporary Government Servant (Termination of Service) Rules, 1975 (hereinafter referred to as "Rule 1975").

It appears that the petitioner has been engaged as daily wager on 06.07.1983 on the post of Mali. It appears that the post of Mali has become substantive and, therefore, by letter/order dated 04.09.1987 passed by Parganadhikari, Varanasi his appointment has been regularised on the post of Mali.

Learned counsel for the petitioner submitted that since the service of the petitioner has been regularised, Rule 1975 does not apply and the petitioner's service can not be terminated under Rule, 1975.

I do not find any substance in the argument of learned counsel for the petitioner.

The Uttar Pradesh Temporary Government Servants (Termination of Service) Rules, 1975 reads as follows:

"1.   Short title, Commencement and application -- (1) There rules may be called the Uttar Pradesh Temporary  Government Servants (Termination of Service) Rules, 1975.

(2)  This Rule and Rules 2, 3 and 4 shall be deemed to have come into force on 30th January, 1953 and Rule 5 shall come into force atonce.

(3)   They shall apply to all persons holding a civil post in connection with the affairs of Uttar Pradesh and who are under the rule making control of Governor, but who do not hold a lien on permanent post under the Government of Uttar Pradesh.

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.

"3.  Termination of Service - (1) Notwithstanding anything to the contrary in any existing rules or orders on the subject, the services of a Government servant in temporary service shall be liable to termination at any time by notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant.

(2)  The period of notice shall be one month.

Provided that the services of any such Government servant may be terminated forthwith, and on such termination the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances, in any, for period of the notice or as the case may be period by for the which such notice falls short of one month as the same rates at which he was drawing them immediately before the termination of his services.

   Provided further that it shall be open to the appointing authority to relieve a Government servant without any notice or accept notice for a shorter period without requiring the Government servant to pay any penalty in lieu of notice.

     Provided also that such notice given by the Government servant against whom a disciplinary proceeding is pending or contemplated shall be effective only if it is accepted by the appointing authority, provided in the case of a contemplated disciplinary proceeding the Government servant is informed of the non-acceptance of his notice before the expiry of that notice."

Short Notes - Services of the temporary Government servant can be terminated at any time without assigning any reasons -- 1989 (1) SLR P&H 432: 1986 (6) SLR P&H 378: 1986 (1) SLR Gujarat 501: 1979 (1) SLR 351 (SC): 1986 (1) SLR J&K 396: 1986 (*) SLR SC 424.

4. Savings - Notwithstanding anything in these rules, the tenure or continuance of engagement or employment of the following categories of persons shall be governed by the terms of their engagement of employment, and nothing in these rules shall be construed to require the giving to them or by them of one month's notice or pay or penalty in lieu thereof before the termination of their engagement of employment --

(a)   persons engaged on contract;

(b)  persons not in whole-time employment of Government;

(c)  persons paid out of contingencies;

(d)  persons employed in a work charged establishment;

(e)  persons re-employed after superannuation;

(f)  persons employed for a specified period whose service stand determined on the expiry of that period;

(g)  persons employed for a specified period on condition that the period may be curtailed at any time ?

(h)  persons appointed in short-term arrangements or vacancies whose services stand determined on the expiry of the arrangement or vacancy.

5.   Rescission and saving - (1) The rule promulgated with Appointment (B) Department Notification No.230--II-B-1953, dated January 30, 1953, shall stand rescinded with effect from the same dated.

(2)  Notwithstanding such rescission, anything done or any action taken or purporting to be done or taken under the said rule shall be deemed to have been done or taken under these rules.

Short Notes --- Where the services are terminated on the ground of unsatisfactory work, unsuitability and unfitness and not by way of punishment. There would be no requirement of conducting the departmental disciplinary proceedings and provisions of Article 311 (2) of  the Constitution of India would not be attracted.

Section 4 of Uttar Pradesh Government Servant Confirmation Rules, 1991 reads as follows:

"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."

Section 4 (2)(ii) of Confirmation Rules, 1991 provides that for the confirmation on the substantive post a formal order is necessary to be passed by appointing authority.

By order dated 04.09.1987 the appointment of the petitioner has only been regularized. The petitioner's service has not yet been confirmed. On the query being made whether any order of the confirmation of the service has been passed, learned counsel for the petitioner submitted that no order of confirmation has been passed. Since no order of confirmation has been passed, the service of the petitioner under U.P. Government Servant Confirmation Rules, 1991, was only temporary  engagement and, therefore, the petitioner's service was covered under Rule, 1975 and exercise of power dismissing the petitioner from service under Rule 1975 can not be said to be illegal.

In view of the above, there is no merit in the writ petition. The writ petition fails and is accordingly, dismissed.

Order Date :- 25.7.2012

R./