Shiv Baran Singh vs State Of U.P. Thru. Prin. Secy. ...
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Allahabad High Court

Shiv Baran Singh vs State Of U.P. Thru. Prin. Secy. ... on 8 January, 2025

Author: Alok Mathur

Bench: Alok Mathur

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2025:AHC-LKO:1352
 
Court No. - 6
 
Case :- WRIT - A No. - 6584 of 2024
 

 
Petitioner :- Shiv Baran Singh
 
Respondent :- State Of U.P. Thru. Prin. Secy. Agricultural Deptt. Lko. And 3 Others
 
Counsel for Petitioner :- Shailendra Kumar Singh,Divyanshu Singh,Phool Bux Singh
 
Counsel for Respondent :- C.S.C.
 
with
 
Case :- WRIT - A No. - 11792 of 1990
 

 
Petitioner :- Shiv Baran Singh State
 
Respondent :- State of U.P. and Others
 
Counsel for Petitioner :- K.K. Shukla,K K Shukla,Phool Bux Singh,Shailendra Kumar Singh
 
Counsel for Respondent :- C.S.C.,C S C 
 
Hon'ble Alok Mathur,J.
 

1. Heard Sri Shailendra Kumar, learned counsel for petitioner as well as learned Standing Counsel for respondents.

2. It has been submitted by learned counsel for petitioner that petitioner was appointed on Class-IV post as Ardali on 11.11.1987 in the pay scale of Rs. 305-390 by Dy. Director, Agriculture Department, Jhansi. It has been stated that the petitioner was appointed against a clear vacancy by the competent authority and the petitioner was discharging his duties to the full satisfaction of his superiors while suddenly by means of order dated 02.06.1990 the services of the petitioner were dispensed with without even giving him any show cause notice.

3. The said order of termination was passed under the Provisions of U.P. Temporary Government Servants (Termination of Services) Rules, 1975. The petitioner made representation against the order of termination which was not paid heed by the respondents and consequently he approached this Court by filing a writ petition being Writ A No. 11792 of 1990.

4. In the said writ petition, by means of interim order dated 20.11.1990, the operation of the termination order was stayed in following terms:-

"According to the petitioner, the organization in which he is working in an industry and he is a workman and his service have been terminated in violation of Sec 6 N of the U.P. Industrial Disputes Act, which is not proper. A decision in Writ petition No. 8709 of 1990 was also produced before me. The operation of the order termination is stayed till further orders."

5. It is on the strength of the interim order of this Court dated 20.11.1990 that the petitioner was permitted to rejoin the duties and continue to work. It is stated that during his continuance in service, he was made permanent by order dated 27.07.2004. In the meanwhile, the Writ A No. 11792 of 1990 was listed on 08.09.2010 when no one appeared on behalf of the petitioner to press the said writ petition and the same was dismissed for want of prosecution.

6. On the dismissal of the writ petition, the respondents proceeded to pass an order dated 07.08.2024 after a lapse of more than three decades taking into notice the order of dismissal of the writ petition for want prosecution and only on this account terminated the services of the petitioner.

7. The petitioner being aggrieved by the order dated 07.08.2024 has filed another writ petition being Writ A No. 6584 of 2024 along with an application for recall in the previous writ petition.

8. Accordingly present writ petition i.e. Writ A No. 6584 of 2024 and Writ A No. 11792 of 1990 are being heard and decided together by a common judgment.

9. First, this Court proceeds to consider the application for recall of the order dated 08.09.2010.

10. It is submitted by learned counsel for petitioner that when the case was listed on 08.09.2010, counsel for petitioner could not appear and consequently the matter was dismissed for want of prosecution. As the application for recall was filed by a new counsel, the reasons for non-appearance has not been indicated but it has been stated that the petitioner at the relevant time was posted in Raebareli and as the interim order has been passed in his favour and he did not receive any message from his counsel, he did not bother to obtain knowledge about the status of the writ petition till he came to know from his office that the writ petition preferred by him has been dismissed.

11. When the petitioner came to know about the order of dismissal, he approached his previous counsel who did not give him any satisfactory explanation and thereafter he engaged present counsel and moved an application for recall as well as filed present writ petition.

12. Though the petitioner was under a duty to keep a track of the writ petition filed by him but in the peculiar circumstances of the case where he had been granted interim protection and his services were continued. Undoubtedly, he was not diligent to find out status about the writ petition. On the other hand even though the writ petition was dismissed in 2010, the respondents did not take any cognizance of the same till about 14 years when the fresh order of dismissal was passed. It seems that there is long delay by both the parties.

13. This court finds that in the peculiar circumstances of the present case where the petitioner was under a bonafide belief that his case was under consideration before this Court and he had not heard from his counsel till he came to know from his office that the writ petition has been dismissed, this Court finds that the delay has been adequately explained and considering that the petitioner is a Class-IV employee who is not well educated and is not aware of the legal intricacies involved in the proceedings, I find sufficient reasons for the delay caused in filing the application for recall, accordingly, the delay in filing the application for recall is condoned, the order dated 08.09.2010 passed in Writ A No. 11792 of 1990 is recalled. Accordingly, Writ A No. 11792 of 1990 is restored to its original number.

14, Considering the fact that second order of termination dated 07.08.2024 was passed only on account of the fact that Writ Petition No. 11792 of 1990 has been dismissed for want of prosecution and now this Court has restored the said writ petition, the order dated 07.08.2024 deserves to be set aside on this ground alone. Accordingly, the order dated 07.08.2024 is set aside.

15. Now this Court is proceeded to consider the merits of the order of termination dated 02.06.1990. It is noticed that the petitioner was appointed by the Dy. Director, Agriculture, Jhansi on Class-IV post on 11.11.1987 and the only reason as stated in the counter affidavit is to the effect that Director Agriculture, U.P. vide office memorandum No. 3867A of 31.10.1987 had direction that no appointment be made in the various office in the various projects sponsored by the State Government and as subsequently it was found that the appointment of the petitioner was in contravention of the office memorandum the respondents proceeded to terminate the services of the petitioner.

16. It is noticed that various other government orders which had banned appointment were also considered by this Court in various writ petitions and it was found that such orders which put restrain on the State Government and its officers from any further recruitment are illegal and arbitrary and consequently they were set aside and this Court is also of the considered view that any directions restraining recruitment in public posts would be illegal and arbitrary and cannot be given effect to and in any case the petitioner had been appointed by respondent No. 4 and he continued to work for three years and was paid salary and no notice was given to him as provided under Rule 3 of the Rules of 1975 and in absence of any notice, the said termination would be illegal and arbitrary.

17. This Court in the case of Amarsen and anotehr Vs. State of U.P. and Ors. (WRit A No. 27163 of 2016) has held as under:

"20. This Court has keenly considered the submissions made and perused the record. Class-IV posts, in an intermediate institution, are governed by Section 16-G of the Act of 1921, like other posts in such an institution. Regulations providing for conditions of service are framed in exercise of delegated powers. Regulations, in fact, have been framed relating to service conditions, both of Class-III and Class-IV employees, of which Regulation 101 is a part. Amendment made to Regulation 101, as regards condition of service, has been upheld by this Court as a valid exercise of legislative powers by the State Government, but the part of paragraph no.2 of the amendment, that provides for engagement of hands against existing Class-IV posts through outsourcing, has been held to be ultra vires the powers of the State Government. This is so because that part of the amendment is no part of conditions of service of a Class-IV employee. It is simply an impingement or restraint on the powers of the Management to appoint against a sanctioned post."

18. Considering the aforesaid submissions of learned counsel for petitioner, it would be necessary to consider the provisions of Rule 3 of Rules of 1975 which is quoted as under :-

"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 terminate 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 service 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, if any, for the period of the notice or as the case may be, period for which such notice falls short of one month at 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 give 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."

19. Rule 3 provides that service on a temporary government servant can be terminated after giving him one month's notice. The proviso to Rule 3 provides that the services can be terminated forthwith and on such termination the government servant shall be entitled to claim a sum of equivalent to the amount of his pay plus allowances, if any, for the period of the notice or as the case may be, period for which such notice falls short of one month.

20. It is noticed that the substantial provisions provides for giving a notice for a period of one month. It is the proviso which takes away the right given to the employer and the employee for giving a notice of one month prior to his termination. The only reasonable construction of Rule 3 of Rules of 1975 would be that one months notice has to be given to the employee prior to his termination but in case there are exceptional circumstances necessitating invocation of the proviso where the services has to be dispensed forthwith then the reasons for invoking the proviso have to be stated in the order itself.

21. Accordingly, in case the service of an employee are to be dispensed forthwith without giving any notice of one month as provided in the substantial provision of Rule 3 then sufficient and cogent reasons exist for invoking the proviso to Rule 3. In the present case, this court does not find any reason for terminating the services of the petitioner except the fact that the office memorandum issued by the Director, Agriculture had restrained appointment in the Agriculture Department. Despite the said restraining order, the petitioner was appointed and continued to work for nearly 3 years. In the said circumstances, this Court does not find any exceptional circumstances or extenuating circumstance for the respondents to have invoke the proviso Rule 3 of Rules of 1975 to terminate services of the petitioner forthwith.

22. Even otherwise this Court noticed that the petitioner had been permitted to continued for a period of 3 years and it is in during this period that the regularisation rules was brought forth by the State Government and had the petitioner been allowed to continue his services would have been regularised. This Court further take notice of the fact that after interference of this Court an interim order being passed and the petitioner was allowed to continue his services were in any case made permanent w.e.f. 27.07.2004.

23. Accordingly, in the aforesaid circumstances, this Court finds that the order of termination dated 02.06.1990 cannot stand and accordingly is set aside. This Court has already set aside the subsequent order of termination dated 07.08.2024.

24. In light of the above, both the writ petitions are allowed. The respondents are directed to reinstate the petitioner in services forthwith and shall be entitled to 50% of the back-wages from the date of his termination till the date of his reinstatement.

(Alok Mathur, J.)

Order Date :- 8.1.2025

Ravi/