Allahabad High Court
Shahrukh Husain vs Aligarh Muslim University, ... on 8 April, 2019
Bench: Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 19
Case :- WRIT - A No. - 5282 of 2019
Petitioner :- Shahrukh Husain
Respondent :- Aligarh Muslim University, Aligarh, And 4 Others
Counsel for Petitioner :- Hemant Kumar
Counsel for Respondent :- Shashank Shekhar Singh
Hon'ble Manoj Kumar Gupta,J.
Heard counsel for the petitioner and Sri Shashank Shekar Singh, counsel for the the respondent-University.
With their consent, the instant writ petition is being disposed of finally without inviting a formal counter affidavit.
The petitioner has called in question an office memo dated 9.8.2018 issued under signature of Assistant Registrar, (Administration -NT), Aligarh Muslim University, Aligarh notifying the termination of services of the petitioner from the post of temporary, Lower Division Clerk (Admn.), MAS. The office memo recites that the matter was submitted to the Vice- Chancellor, who after due consideration, and in the light of Rule under Chapter XL Ordinances (Executive) Relating to Regulations Governing the Terms and Conditions of service of Non Teaching employee, Chapter II (General) Section II, Clause 14(1)(b), has ordered that 'temporary services of Mr. Shahrukh Husain be terminated'. The petitioner has also challenged the order passed by Executive Council in its meeting held on 19.1.2019, whereby the appeal filed by him has been rejected. The Executive Council, while upholding the order dated 9.8.2018 has also observed that the appointment of the petitioner was made on temporary basis and he had failed to submit his physical fitness certificate.
The undisputed fact is that the appointment of the petitioner on the post in question was made on 21.5.2009 on compassionate basis consequent to death of his father Late Mazhar Husain, who was an employee of the University. The appointment was initially for a period of six months or till further orders on terms and conditions as applicable to a temporary appointment.
The specific case of the petitioner is that appointment on compassionate basis could not be a temporary appointment. It is submitted that when the petitioner prayed for his regularisation, the respondent-university without holding any enquiry and treating the petitioner to be a temporary employee, terminated his services by order dated 9.8.2018 and which has been upheld by the Executive Council in its meeting held on 19.1.2019. The Executive Council, as noted above, has also mentioned about non-furnishing of physical fitness certificate, which according to the petitioner is factually incorrect in as much as he had submitted the said certificate on 6.7.2011 issued by the University Health Services.
Counsel for the petitioner has placed reliance on a Full Bench judgement of this Court in Senior General Manager, Ordnance Factory vs. Central Administrative Tribunal and others, AIR 2016 All 89, in support of his contention.
Sri Shashank Shekhar Singh learned counsel for the respondents does not dispute that service of the petitioner has been terminated by treating him to be a temporary employee.
In Senior General Manager (supra), the Full Bench of this Court, has considered a Division Bench judgement in Ravi Karan Singh vs. State of U.P. (1999) 3 UPLBEC 2263. In that judgement, the issue was whether an appointment made under the Uttar Pradesh Recruitment of Dependents of Government Servants (Dying in Harness) Rules, 1974 is a permanent or a temporary appointment. A Single Judge, disagreeing with earlier decisions which had held that an appointment under the Dying in Harness Rules is a permanent appointment, had referred the issue to a larger Bench. Answering the reference, the Division Bench held as follows:-
"In our opinion, an appointment under the Dying in Harness Rules has to be treated as a permanent appointment otherwise if such appointment is treated to be a temporary appointment then it will follow that soon after the appointment the service can be terminated and this will nullify the very purpose of the Dying in Harness Rules because such appointment is intended to provide immediate relief to the family on the sudden death of the bread-earner. We, therefore, hold that the appointment under Dying in Harness Rule is a permanent appointment and not a temporary appointment and hence the provisions of U.P. Temporary Government Servant (Termination of Services) Rules, 1975 will not apply to such appointments."
Although the issue before the Full Court was whether a person appointed on compassionate basis could be placed under probation or not, but while considering the same, the Full Bench quoted with approval the above para from Ravi Karan Singh and then observed as under :-
"The decision in Ravi Karan Singh holds that the appointment of a person who is appointed under the Dying in Harness Rules cannot be terminated under the rules applicable to temporary government servants. The rationale for this position in law is that if the appointment is treated to be temporary, this will nullify the purpose of compassionate appointment which is to provide succour and relief to the family of the bread earner who has died while in service. This principle that the services of a person who is appointed on compassionate grounds, cannot be dispensed with by applying the rules prescribed for temporary government servants, was applied in Sanjai Kumar and later in Ram Chandra."
The judgement in Sanjai Kumar vs. Dy. Director General (NCE) Directorate, UP, (2002)3 UPLBEC 2748 and Ram Chandra vs. State of U.P., (2008) 2 ESC 1053 (All) (DB) (LB), also holds that U.P. Temporary Government Servants (termination of Service) Rules, 1975 cannot be applied in terminating the services of a person appointed on compassionate basis as his appointment is as a regular employee and not temporary employee.
The Full Bench thereafter proceeded to hold that although compassionate appointment could not be a temporary appointment but such appointee can be placed on probation in the first instance in case the service rules so prescribes as in the case of appointment of any other regular employee.
Sri Shashank Shekhar Singh, learned counsel for the respondent-university does not dispute the above legal position and that status of the petitioner in the light of law laid down by Division Bench in Ravi Karan Singh and Full Bench in Senior General Manager would be that of a regular employee. Consequently, the impugned orders terminating his service treating him to be a temporary employee cannot be sustained and are hereby quashed. It is declared that appointment of the petitioner shall be treated to be a regular employment. It is left open to the respondent-University to proceed against the petitioner in accordance with law treating him to be a regular employee by following the procedure prescribed in relation to such employees.
The petition stands allowed to the extent indicated above.
Order Date :- 8.4.2019
skv
(Manoj Kumar Gupta, J.)
